New York City

Published on: January 24, 2013

Court Rules Upon Third Petit Theft Conviction, Offense is a Felony

by Stephen Bilkis

In a court proceeding, a man filed an appeal for his conviction and sentence for felony petit theft. He asserts that the subsection of the statue convicting him does not permit consideration of convictions for petit larceny.

A New York Criminal Lawyer said that based on records, petit theft is normally a misdemeanor and the law specifically provides that upon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the third degree. Therefore, in order to be sentenced under the felony provisions, the offender must have been convicted twice previously with a petit theft (petit larceny) case. Yet, the trial court indicated that they considered two previous convictions of the man, one for petit larceny and one for attempted petit larceny, as the basis for the man’s enhanced sentence. Since the statute does not permit consideration of the attempted petit larceny conviction, the trial court erred in sentencing the man.

Consequently, the court finds no distinction between the two statutes for the purpose of sentencing. As a result, the court decided to reverse the sentence and remand the cause for resentencing.

Published on: January 24, 2013

Court Discusses Act of Depraved Indifference in Murder Trial

by Stephen Bilkis

On July 1, 2005, after spending several hours in a bar in Manhattan, at which he consumed at least six beers, the defendant attended a friend’s party in Merrick in Nassau County. He arrived at the party, which consisted of a small gathering of his friends. The house where the party was being held was approximately a five-minute drive from the Meadowbrook State Parkway. At the party, the defendant was seen consuming several alcoholic drinks. Two of the defendant’s friends who were at the party described the defendant as intoxicated or “buzzed.” However, neither one observed the defendant stumbling or staggering while he was dancing, nor was he observed to be slurring his words. A Bronx DWI Lawyer said that, the defendant remained at the party for 1 1/2 to 2 hours before leaving in his pickup truck. Despite having previously received offers to sleep over or utilize a designated driver rather than drive after drinking, the defendant chose to get into his pickup truck and drive while intoxicated.

A Bronx DWI Lawyer said that, the defendant was driving the wrong way in the southbound lanes of the Meadowbrook State Parkway, a limousine was proceeding south in the left southbound lane of the Meadowbrook State Parkway. The limousine encountered the pickup truck headed directly towards it just north of the Babylon Turnpike overpass. The limousine was carrying a family, consisting of their two daughters, seven-year-old and five-year-old, and the parents, back home from a wedding. The pickup truck collided head-on with the limousine, apparently having tracked the limousine’s movement, crushing and killing the other passenger, decapitating the seven-year-old passenger in the limousine, and causing severe, and, in some instances, life-threatening, injuries to the remaining passengers in the limousine.

A Bronx Drunk Driving Lawyer said that, the defendant was placed under arrest at the scene, and was later informed of his arrest by the Investigator of the New York State Police. Upon being so advised, the defendant told the police that from the time he had moved to New York from Arkansas the previous October, “everything was going wrong” and “nothing he did was ever enough.” The defendant recounted to the police that he had argued with his ex-girlfriend over the phone, had financial problems, had recently lost his grandmother with whom he had been close, and was very upset, depressed, and in a “self-destructive mode.”

Published on: January 15, 2013

Court Discusses the Elements of Petit Larceny

by Stephen Bilkis

In this petit larceny case, this court reversed appellant’s conviction for robbery and “remanded for judgment and sentence for petit larceny.” However, after remand, at the state’s request, the trial court sentenced appellant for felony petit theft. A Seminole Petit Larceny Lawyer said that, appellant appeals, arguing that the charging document charging him with robbery did not allege that he had two or more prior petit theft convictions which convictions are essential elements of the substantive criminal offense of felony petit theft and, therefore, he was never charged with felony petit theft and his sentence for that crime violates his constitutional due process rights.

The issue in this case is whether the Court erred in sentencing appellant for the felony of petit theft.

A New York Criminal Lawyer said the Court said that, in a 1978 case, the Florida Supreme Court held (1) that the felony petit theft statute (then section 812.021(3), now section 812.014(2)(c), Florida Statutes created a substantive offense, and (2) that the required two or more prior petit larceny convictions are elements of that substantive offense which must be specifically alleged and proved. To avoid jury prejudice against the accused, that case also held that proof of the prior petit theft convictions can be made to the court in a separate proceeding after the jury finds the defendant guilty of the charged petit larceny offense.

Published on: December 25, 2012

Defendants Claim Court Erred in Sentencing

by Stephen Bilkis

The Facts of the Case:

A building containing offices and retail establishments was broken into and burglarized. Moments after the silent alarm system went off, the appellants, along with a third person, were found inside including various tools that were apparently used in the burglary. Consequently, appellants were charged and convicted of breaking and entering with intent to commit a felony, viz: grand larceny, petit larceny and possession of burglary tools. They were each sentenced to fifteen years for the breaking and entering conviction, 60 days in the county jail for the petit larceny, and five years for the possession of burglary tools, the latter to run consecutive to the former concurrent sentences.

A New York Criminal Lawyer said the appellants now ask the court for a reversal of their convictions and sentences and argues that the evidence presented was insufficient to support the conviction of breaking and entering with intent to commit grand larceny; that the trial court erred in disallowing the testimony of an alleged material witness; and that the trial court erred in imposing three separate sentences for the three offenses inasmuch as the petit larceny and possession of burglary tools were but facets or phases of the breaking and entering with intent to commit grand larceny.

Published on: December 24, 2012

Court Discusses Application of Harmless Error Rule in Theft Case

by Stephen Bilkis

The Facts of the Case:

Petitioners were charged with breaking and entering with intent to commit a felony, to-wit: grand larceny. At a jury trial, petitioners requested an instruction on breaking and entering with intent to commit a misdemeanor, petit larceny, but this request was denied. Thereafter, the jury found the petitioners guilty as charged and the criminal court sentenced each of them to fifteen (15) years. On appeal, the District Court of Appeal, Second District, affirmed the guilty verdict holding that the proof of guilt was overwhelming and that any error committed by the court’s refusal of the requested instruction on the alleged lesser offense was harmless.

The case is now before the court for certiorari.

Published on: December 15, 2012

Court Discusses Intent in Petit Larceny Charges

by Stephen Bilkis

The Facts of the Case:

The appellant was charged with the criminal act of breaking and entering with intent to commit a misdemeanor, viz.: petit larceny. The information charged three elements: unlawful breaking, unlawful entry and the intent to commit petit larceny. A New York Criminal Lawyer said the jury found appellant guilty of two of the three elements set forth in the accusatory pleading by finding that he had made an unlawful entry with intent to commit petit larceny or entering without breaking with intent to commit petit larceny. Clearly, the verdict found defendant guilty of a crime included within the offense charged by the accusatory pleading.

The Issue of the Case:

Published on: December 12, 2012

Court Discusses Grand Larceny vs. Petit Larceny Charges

by Stephen Bilkis

A man knocked on an apartment door. He claimed to be delivering something for the resident in the apartment. He asked the resident for some personal identification. The resident of the apartment left the apartment door open and left the man at the door while she went inside the apartment to get her ID. A New York Criminal Lawyer with the apartment door left open, a television set can be seen which was put on a stand situated very near the open apartment door. On the floor near the television, there were sweaters scattered all over. The man took the TV and the sweaters on the floor.

The man was seen by another delivery man who was making a delivery in a nearby apartment at the same time. He saw the bogus delivery man go inside the apartment and leave holding the TV set and the sweaters. He also saw the bogus delivery man leave the apartment and ride a bike while carrying the TV set and the sweaters. The delivery man followed the bogus delivery man and saw that at the nearest corner, the bogus delivery man dropped the TV and the sweaters. He left them there on the street where they fell. And he rode the bike all the way to a nearby restaurant. At the restaurant premises, the bogus delivery man left the bike. He went to the parking area of the restaurant and rode in a car. The delivery man wrote down the license plate of the bogus delivery man’s car. When a police cruiser came by, the delivery man told them his story and gave them the license plate of the bogus delivery man. He also led them to the spot where the TV and the sweaters were dropped.

The bogus delivery man was later arrested. He was charged with two crimes in one information: he was charged with breaking and entering with intent to commit grand larceny and grand larceny. The bogus delivery man moved for a trial without a jury. The man was convicted with breaking and entering with intent to commit grand larceny but he was convicted only of petit larceny and not grand larceny because the prosecution failed to prove that the properties taken were valued beyond $100.

Published on: December 11, 2012

Court Distinguishes Between Petit Larceny and Felony Petit Larceny

by Stephen Bilkis

The state charged appellant with armed robbery and resisting a merchant. The jury found her guilty of the lesser included offense of petit theft and resisting a merchant. The trial court adjudicated her guilty of the two misdemeanors. At sentencing, however, the court reclassified her conviction pursuant to section 812.014(2)(c), based on her prior theft convictions. A West Palm Beach Petit Larceny Lawyer said that, appellant stipulated at pretrial that she had nine prior misdemeanor convictions. A New York Criminal Lawyer said the information, however, did not make reference to the prior convictions, nor did it charge her with a felony petit theft. On that ground, appellant contends that the trial court erred when it reclassified her petit theft conviction to felony petit theft.

The issue in this case is whether the Court erred in reclassifying appellant’s conviction of petit theft to felony petit theft (petit larceny).

Ina 1991 case, the court stated: A charging document must provide adequate notice of the alleged essential facts the defendant must defend against. In recognition of this concern, Florida Rule of Criminal Procedure 3.140(b) provides that an “indictment or information upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” The Court then referred to its prior opinion in a 1978 case: the Justice concluded for the Court that the felony petit larceny statute “creates a substantive offense and is thus distinguishable from section 775.084, the habitual criminal offender statute.” The felony DUI statute is indistinguishable in this regard. The Court concludes that the existence of three or more prior DUI convictions is an essential fact constituting the substantive offense of felony DUI. Having established that the existence of prior DUI convictions is an essential element of felony DUI, it necessarily follows that the requisite notice of prior DUI convictions must be given in the charging document.

Published on: December 5, 2012

Court Looks at Intent to Commit Petit Larceny

by Stephen Bilkis

A man went to a house in a residential neighborhood. It was eleven thirty in the evening and all the three residents of the house were fast asleep. The man went up the roof and was preparing to enter the house through a bedroom with an open screened window.

A New York Criminal Lawyer said tne resident of the house was fast asleep in the bedroom as the man was trying to enter through the screen window. The noise made by the man outside the window woke the resident of the house. He had a .25 caliber hand gun in a drawer in his bedside table. He cried aloud and said “Who’s there?” When the man crouched down in an attempt to hide, the occupant fired a warning shot.

Another occupant called an emergency hotline and the man was unable to get down from the roof until the police got there. The man was charged with attempted breaking entering with intent to commit grand larceny. It was alleged that the three occupants in the house had cell phones, laptop computers and other valuables inside the house which could have been what the prowler intended to take.

Published on: December 3, 2012

Court Discusses Lesser Included Offenses

by Stephen Bilkis

A man was charged with breaking and entering with intent to commit a felony. He was convicted of the lesser included offense of breaking and entering or entering without breaking with intent to commit a misdemeanor. He appeals the judgment and sentence.

A New York Criminal Lawyer said the man recognizes that the court, when confronted with such a verdict and judgment, remanded the case to the trial court with instructions to enter judgment and sentence on the lesser of the included offenses referred to in the verdict. He requests that the Court reconsider such previous ruling. It has subsequently developed, however, that the District Court of Appeal has overruled and receded. Upon consideration of the opinion, the Court agrees with the general reasoning but go a step further. The Court of Appeal construes the crime of breaking and entering or entering without breaking as a single crime rather than two different crimes.

The information charged three elements including unlawful breaking, unlawful entry and the intent to commit petit larceny. The jury found the man guilty of two of the three elements set forth in the accusatory pleading by finding that he had made an unlawful entry with intent to commit petit larceny. These two elements constitute a crime just as surely as did the three elements charged. By all standards entering without breaking seems to meet the definition of a category necessarily included offense to breaking and entering.