New York

Published on: January 28, 2013

Defendant Contends Court Has Insufficient Evidence to Sustain a Drug Conviction

by Stephen Bilkis

The appellant in this case is seeking to have his conviction reversed. He was convicted of possession of marijuana. A New York Criminal Lawyer said the question before the court is whether or not the evidence in the case is enough to sustain the conviction.

Case Background

At the time the appellant was charged with the offense he was a college student and had a female companion who was also a student. He frequently visited the female companion’s apartment, sometimes during the evening and sometimes he stayed the night.

Published on: January 27, 2013

Drug Crime Defendants Claim There is Insufficient Evidence Against Them

by Stephen Bilkis

The DEA along with the local Sherriff’s Department started a joint investigation of what was believed to be to be a cocaine trafficking organization. A New York Criminal Lawyer said the investigation focused on a local restaurant and its owner. The investigators believed that the owner of the restaurant was the leader of the organization that purchased powder cocaine and crack as well as marijuana (marijuana possession). These suspicions were confirmed when confidential informants made several drug purchases at the restaurant. The owner refused to sell to one of the informants, but his son sold to the informant and the owner watched the transaction take place.

The task force began to accumulate evidence against the owner of the restaurant as well as many of his customers over the years. Several individuals were arrested in the central part of the state for possession of numerous controlled substances and identified the restaurant as where they received the drugs.

After a while participants in the drug ring started to turn on the organization. A Brooklyn Criminal Lawyer said the first individual told officials that crack cocaine was dealt at the restaurant and the main person was the owner. He told officers that he along with another man, and the girlfriend of the owner worked directly for the restaurant owner. Other people came forward and confirmed this story.

Published on: January 26, 2013

Court Weighs Plaintiffs Injuries Against Applicable Insurance Law

by Stephen Bilkis

A motion by the accused woman for an order awarding her summary judgment dismissing the claims of the complainant that she did not sustain a serious injury within the meaning of Insurance Law is granted.

A cross-motion by the complainant husband for an order awarding him summary judgment dismissing the accused woman’s counterclaim as defendant was solely liable for the happening of the accident is also granted.

A New York Criminal Lawyer said that viewing the evidence most favorably to the accused, it is nevertheless uncontroverted that the impact between the vehicle driven by the complainant husband and the vehicle driven by the accused woman took place while the complainant husband was stopped and waiting to cross over the double yellow lines to turn into his own driveway. Moreover, the accused woman was concededly drinking prior to the accident and was arrested for drunk driving following the accident. She also pled guilty to DWI and was traveling at approximately 20 miles per hour with her foot on the gas at the time of impact. At best, the accused struck the complainant’s vehicle without crossing over the double yellow lines into the complainant’s lane and instead struck the complainant’s stopped vehicle while both vehicles were pretty much right on the line.

Published on: January 26, 2013

Court Weights Constitutionality of Sentencing for a Felony in the Third Degree

by Stephen Bilkis

The Florida state filed an appeal placing in issue the constitutionality of the provisions of law pertaining to the inclusion of prior convictions in the charging information. This was due to the ruling of the circuit court, wherein the appellees who were charged and found guilty of petit larceny and they have already been previously convicted of such crime twice. A New York Criminal Lawyer said the court granted the motion to dismiss filed by the accused on the ground that such charges were unconstitutional which deprived the defendants’ due process and equal protection of the law. The court granted the motion, thus, the appeal was made by the state.

The issue before the court is the constitutionality of the provision of law where “upon the third or subsequent conviction for petit larceny, the offender shall be guilty of a felony in the third degree.” A New York Criminal Lawyer said this was a distinct substantive offense that can be distinguished from the statute on being considered a criminal habitual offender. Both statutory provisions provide harsher punishments for a repeated offender. As habitual offender, the previous offense shall serve as the basis of an increased penalty while the other law makes the prior offense part of the elements of the present offense charged against the felon, which must be specifically alleged and proved during trial. In the latter case, the jury must provide judgment as to the guilt or innocence of the defendant based on the existence of facts related to prior conviction or convictions and return a verdict as to both.

The court pointed out several cases to sustain the action of the trial judge in submitting before the jury the judgment as to the verdict of the present offense charged and as to the historical fact of prior conviction. Furthermore, a New York Drug Possession Lawyer said the jury is under obligation to come up with specific findings of the facts in said former convictions.

Published on: January 26, 2013

Defendants Bring Motion to Supress Evidence in Sex Crimes Case

by Stephen Bilkis

This is a case for the sex crime of obscenity where the defendants filed a motion to suppress certain evidence presented during the trial. In the motion, they raised as a contention that the prosecution was stopped from introducing evidence for acts of sodomy since there was a previous acquittal of the defendants for the offense of consensual sodomy.

A New York Sex Crimes Lawyer said the surrounding facts of the case were that the appellants had been earlier charged of consensual sodomy and promotion of obscenity for performing in a show participated by the defendants. After trial, the parties charged were acquitted for the sex crime of consensual sodomy but a hung jury resulted for the charge of promoting obscenity.

A retrial was processed for the felony of promoting obscenity and, during the trial, the prosecution showed evidence that included testimony in relation to the alleged acts of sodomy. Based on the ground that the there was acquittal granted to the appellants for the consensual sodomy, such testimony relating thereto should not be presented as evidence since it would constitute double jeopardy and constructive estoppel.

Published on: January 26, 2013

Defendant Accused of Aiding and Abetting Perpetrator in Robbery

by Stephen Bilkis

The accused man along with a co-accused was convicted of robbery in the first degree. He and his co-accused had been charged with aiding and abetting the actual perpetrator; and the sole evidence linking the accused to the robbery was his own admissions. The evidence was insufficient to establish the accused man’s guilt of robbery as a principal.

The accused man’s admissions established only that he had given a gun to his co-accused who, in the accused man’s presence, then turned it over to their actual perpetrator man, whom they knew was going to use it in a robbery; and that after the robbery, and an ensuing homicide in which a police officer was killed, the accused cut his actual perpetrator’s hair in an effort to help him evade capture. It is indisputable that the accused was never present during the actual commission of the robbery and it is not claimed that he ever shared in the robbery proceeds.

Clearly, the accused did intentionally render assistance to the actual perpetrator. However, to be criminally liable for the robbery itself, he must also be shown to have shared the same specific intent or mental culpability as the actual perpetrator, and this was not done. The transfer of the weapon to the actual perpetrator, without more, is at best equivocal; and the subsequent cutting of the actual perpetrator’s hair is of little or no probative value, since it was the intervening killing of a police officer and not the robbery which obviously gave rise to the extensive manhunt. In other words, while the accused may be guilty of other crimes, such as criminal facilitation and hindering prosecution, the circumstantial evidence was not at all inconsistent with his innocence of the crime of robbery itself.

Published on: January 25, 2013

Defendant Says Ineffective Counsel Resulted in Unjust Conviction

by Stephen Bilkis

An appeal was filed by the state for the denial of the court of its motion for summary judgment to dismiss the claim of the claimant who maintained an action for wrongful conviction. A New York Sex Crimes Lawyer said the court reviewed the records of the case and found insufficient evidence that would support the claimant’s allegation of unjust conviction for the charge of attempted rape in the first degree. Although it was noted by the court that the counsel of the accused had difficulty communicating with him, such concern did not result to his lawyer’s unwillingness and inability to represent and forward his interest during the trial. The ground of ineffective assistance of an attorney is not proper for a claim of unjust conviction.

Based on the law applied, the grant of the claim for unjust conviction against the state, the claimant must establish that the “the judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor.” The indictment of the respondent must prove before the court of claims that there was coercion or fraud used by the court to obtain hiss plea of guilty to the crime charged against him. A New York Sex Crimes Lawyer said there must be clear showing in the statement of facts that would establish his innocence or the conviction was caused by his own conduct alone, otherwise, his claim must be dismissed.

The claimant presented a document evidencing that he entered a plea of guilty for a lower offense of attempted rape instead of charging him with graver sex crimes like sodomy and sexual abuse. But, later on, the felon withdraw his plea of guilty on account that he made it involuntarily and because of the colossal pressure and coercion placed on him by his legal aid counsel. The court found the allegations of the claimant to be distorted and self-serving as revealed by the records of the case.

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 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

In Consecutive Sentences it Depends on Whether the Acts Were Committed with the Requisite Intent

by Stephen Bilkis

An appeal was filed by the defendant who was convicted with the crimes of murder and criminal possession of a weapon. He alleged that the court erred in its decision to impose consecutive sentences for the indictments he committed claiming that the accused acted with a singular intent.

The Supreme Court, holding the recent decisions of the Court of Appeals, the determining factor to review the legality of consecutive sentences is “whether separate acts have been committed with the requisite criminal intent.” Consequently, the Court ruled that there was no overlap of the statutory elements of the crimes committed by the appellant, thus, affirming the lawful imposition of consecutive sentences.

A New York Criminal Lawyer said there were two resident gangs at Manhattan who had several altercations among its gang members. One group was composed of the defendant, his sibling and a friend while the other group was a street gang, whose two members were the victims in a shooting incident that caused filing of the felony case against the appellant. Several hours prior to the shooting confrontation, the two groups had encounters and thereafter physical altercations commenced among its gang members. One of the witnesses testified that she saw a gun being carried by the accused at that time of the altercation. After the lapse of a few hours, the defendant moved toward the victim, who was accompanied by other gang members. The group of the victim walked away from the offender to avoid any untoward incident. However, the defendant then took his gun from his shorts and chased down the victim and shot the two victims who died of gunshot wounds.