New York

Published on: January 8, 2013

The issue in this case is whether the superior court information was jurisdictionally defective because it charged a crime of a higher degree than any of the crimes charged in the felony complaint

by Stephen Bilkis

On November 22, 2006, defendant executed in open court a written waiver of his constitutional right to be prosecuted by indictment and consented to be prosecuted instead by a superior court information charging him with first-degree of grand larceny, which requires that the value of the property stolen exceed $ 1 million. More than three months earlier, defendant had been arrested and charged in a felony complaint with second-degree grand larceny, which requires that the value of the property stolen exceed $50,000, and second-degree criminal possession of a forged instrument. The felony complaint charged that defendant was the head of accounts payable at Nina Footwear and had stolen approximately $700,000 from the company by issuing forged checks to himself and a codefendant. Notably, the felony complaint also alleged that defendant had admitted to the police that he had issued the checks in question and forged the signatures. Thereafter, as the minutes of the several proceedings in criminal court prior to November 22 establish, defense counsel and the prosecutor were negotiating a disposition.

A New York Criminal Lawyer said at the outset of the proceedings, defense counsel made clear that defendant had not wanted and did not want to be indicted by a jury. The court noted that a superior court information had been prepared and that the People would proceed to a jury if a disposition was not reached. After the court stated that the felony complaint charged defendant with stealing hundreds of thousands of dollars from Nina Footwear, the prosecutor stated that “since the complaint was drafted, there has been a significant amount discovered on top of that. It is now over 1 million dollars.” The court then outlined on the record the disposition to which the parties had agreed: defendant would plead guilty to a superior court information charging him with first-degree grand larceny in exchange for a prison sentence of 2 1/3 to 7 years, pay some $ 100,000 in restitution and consent to the entry of judgment against him in the full amount of the theft, about $1.5 million.

Following discussions between the court and counsel, defendant signed a waiver of indictment form. As required by CPL 195.20, the written waiver of indictment contained a statement by defendant that he was aware that he had the right under the New York State Constitution to be prosecuted by a grand jury indictment, was waiving that right and consenting to be prosecuted by a superior court information, and that the information would be charging the offense specified in the written waiver and have the same force and effect as an indictment filed by the jury. Also as required by CPL 195.20, the written waiver was signed by defendant in open court in the presence of his attorney, and the consent of the District Attorney was endorsed thereon.

Published on: January 8, 2013

Prison Inmates Contend Constitutional Rights Were Violated

by Stephen Bilkis

Respondent inmates brought this class action in Federal District Court challenging the constitutionality of numerous conditions of confinement and practices in the Metropolitan Correctional Center (MCC), a federally operated short-term custodial facility in New York City designed primarily to house pretrial detainees for federal criminal offense. A New York Criminal Lawyer said the District Court, on various constitutional grounds, enjoined, the practice of housing, primarily for sleeping purposes, two inmates in individual rooms originally intended for single occupancy (“double-bunking”); enforcement of the so-called “publisher-only” rule prohibiting inmates from receiving hard-cover books that are not mailed directly from publishers, book clubs, or bookstores; the prohibition against inmates’ receipt of packages of food and personal items from outside the institution; the practice of body-cavity searches of inmates following contact visits with person from outside institution; and the requirement that pretrial detainees remain outside their rooms during routine inspections by MCC officials. The Court of Appeals affirmed these rulings, holding with respect to the “double-bunking” practice that the MCC had failed to make a showing of “compelling necessity” sufficient to justify such practice.

The issue in this case is whether the constitutional rights of the inmates has been violated because of the conditions of confinement and practices imposed by the MCC, a facility designed to house a pre-trial detainees who committed federal criminal offense.

The Court held that, “double-bunking” practice does not deprive pretrial detainees of their liberty without due process of law in contravention of the Fifth Amendment.

Published on: January 7, 2013

Court Hears Case Based on Professional Misconduct

by Stephen Bilkis

On February 20, 1967, the then City Manager of respondent city of Independence, appointed petitioner to an indefinite term as Chief of Police. In 1972, petitioner and a new City Manager, engaged in a dispute over petitioner’s administration of the Police Department’s property room. In March of that year, a handgun, which the records of the Department’s property room stated had been destroyed, turned up in Kansas City in the possession of a felon. A New York Criminal Lawyer said this discovery prompted the City Manager to initiate an investigation of the management of the property room. Although the probe was initially directed by petitioner, the City Manager soon transferred responsibility for the investigation to the city’s Department of Law, instructing the City Counselor to supervise its conduct and to inform him directly of its findings.

Sometime in early April 1972, the City Manager received a written report on the investigation’s progress, along with copies of confidential witness statements. A Westchester County Criminal Lawyer said that although the City Auditor found that the Police Department’s records were insufficient to permit an adequate accounting of the goods contained in the property room, the City Counselor concluded that there was no evidence of any criminal acts or of any violation of state or municipal law in the administration of the property room.

A Suffolk Criminal Lawyer said that, the City Manager asked petitioner to resign as Chief of Police and to accept another position within the Department, citing dissatisfaction with the manner in which petitioner had managed the Department, particularly his inadequate supervision of the property room. He warned that if petitioner refused to take another position in the Department his employment would be terminated, to which petitioner responded that he did not intend to resign.

Published on: January 6, 2013

Defendant Contends He Was Improperly Sentenced in Grand Larceny Offense

by Stephen Bilkis

This is a proceeding brought pursuant to Article 78 of the CPLR to prohibit respondent Covington, a Justice of the Supreme Court, Bronx County from vacating petitioners’ convictions and the sentences imposed thereon in violation of Article 440 of the Criminal Procedure Law, and to prohibit respondents J.C. and P.G., District Attorney, Bronx County, from further prosecution of the petitioners on felony charges.

A New York Criminal Lawyer said on July 7, 1987 petitioners pleaded guilty to attempted grand larceny in the third degree. All parties apparently thought that defendants were pleading guilty to an “E” felony, since grand larceny in the third degree is a “D” felony. Accordingly, defendant Wilson was sentenced as a predicate felon to 1 1/2 to 3 years in prison.

A Bronx Grand Larceny Lawyer said that, attempted grand larceny in the third degree became a “D” felony on November 1, 1986. At the time of the commission of the acts alleged in the indictment, May 14, 1986, grand larceny in the third degree was an “E” felony and attempted grand larceny in the third degree an “A” misdemeanor. Thus, the defendant was improperly sentenced to felony time that is 1 1/2 to 3 years in prison. A Bronx Grand Larceny Lawyer said that, petitioner W. commenced his sentence. Following the discovery of the error, the trial court vacated the sentence and conviction and reinstated the original felony charges. On February 23, 1988 this court granted a stay of the prosecution pending determination of this Article 78 proceeding.

Published on: January 5, 2013

Defendant Claims Double Jeopardy for Drug Charges

by Stephen Bilkis

A complainant man seeks an order to prevent the justices of the Supreme Court and the district attorney from proceeding to try him on an allegation returned against him by the grand jury.

A New York Criminal Lawyer said the indictment charges the complainant and another man with various degrees of possession of a dangerous drug. The complainant is charged with first degree of possession of 16 ounces and more of heroin, fourth degree of possession of a narcotic drug with intent to sell and sixth degree of possession of a dangerous drug.

The complainant, the other man and several others were also prosecuted under a nine-count federal charges, in which the complainant was charged with counts one and two of possession with intent to distribute and distribution of one kilogram of heroin (heroin possession), attempt to distribute half a kilogram of heroin and conspiracy to distribute and to possess with intent to distribute quantities of heroin.

Published on: January 4, 2013

Court Discusses Double Jeopardy in Drug Possession Case

by Stephen Bilkis

The indictment charges against defendant with others with various degrees of possession of a dangerous drug are as follows:

Count 1: 1st degree–possession of 16 ounces and more of heroin;

Count 2: 4th degree–possession of a narcotic drug (heroin) with intent to sell; and

Published on: January 3, 2013

New York law provides that the murders must have been committed by the person engaged in the commission of or an attempt to commit a felony

by Stephen Bilkis

A man who owned a bar saw two of his customers having an argument while inside the bar. He went over to them and told them to take their argument outside. The two men left the bar and stayed on the sidewalk just outside the bar and the argument escalated into a very heated argument. One man pushed the other man down. A New York Criminal Lawyer said the man who pushed the other drew a gun from his backside and fired into the crown inside the bar which by then was rubber-necking the argument outside. A patron inside the bar got hit when the ma outside fired into the bar. That man lay seriously wounded on the floor of the Bar.

Unnoticed by the man outside the bar, a police officer on beat patrol heard the commotion and the shots fired. On the other side of the street, as the gunman fired into the bar, the police officer engaged the gunman in a gunfight. A few seconds later, a car pulled up near the gunman and the gunman got inside the car. The police officer gave chase while still firing upon the car.

In the meantime, when the bar keeper and owner of the bar heard that shots were fired by the gunman outside the bar, he went behind the bar and took out his shotgun. When he heard the screeching of the tires on the street, he came out of the bar and stood next to the police officer. He fired his shotgun at the car.

Published on: January 2, 2013

Court Discusses Conspiracy to Sell Drugs Charges

by Stephen Bilkis

This involves a case where the court ruled that the indictment against the defendant be reinstated.

During 1981 police officers conducted a large-scale investigation into the distribution of narcotics in New York, Queens and Bronx counties. A New York Criminal Lawyer said the investigation, which included a number of drug purchases by an undercover officer and involved the extensive use of electronic eavesdropping and surveillance, led to seven indictments charging the 12 subjects of the investigation, among them defendant, with conspiracies to sell narcotics, and with the sale and possession of heroin and cocaine. The charges against defendant were based on his alleged participation in heroin sales to the undercover officer on June 26, August 19, and September 11, 1981, and an attempted heroin sale on September 24, 1981. As a result defendant were charged in one of the indictments with one count of conspiracy in the second degree for their activities from May 28, 1981 to September 22, 1981. They were also charged with two counts of criminal sale of a controlled substance (drug possession) in the second degree and four counts of criminal possession of a controlled substance in the third degree for the August 19 and September 11 sales.

Trial Term dismissed the indictment against defendant, finding that that evidence was insufficient as to him to make out a prima facie case for either the sales or the conspiracy.

Published on: January 1, 2013

Confidential Informants Can Establish Probable Cause

by Stephen Bilkis

The April 25, 1975 affidavit of the State Police Investigator in support of the application for the warrant to search the house and automobile of the defendants contains five distinct elements which in some way indicate that defendants were keeping illicit drugs in or about their house. A New York Criminal Lawyer said these elements are of two sorts: communications from confidential informants and observations by named police officers. The informant data can be summarized as follows:

Informant # 1 “who has provided information which led to the arrest and conviction of two subjects for Murder, the arrest of one subject and the seizure of a quantity of controlled substances (drug possession) advised me approximately six months ago that a guy named M, living on East Lane, Burden Lake * * * with his girlfriend, C, was selling and packaging heroin at his residence on East Lane.”

Informant # 2 told me that “he overheard a conversation between a subject known to him, who let him hear what was being said and CN. In the conversation, CN discusses a quantity of heroin which was stolen from her residence on Burden Lake. He also overheard MS discuss the loss of 2 grams worth $200.00 apiece.”

Published on: December 31, 2012

Defendant Contends Right to Fair Trial Violated

by Stephen Bilkis

An accused man was questioned at length by his attorney to establish that he no longer used heroin and was involved in a methadone program. A New York Criminal Lawyer said his direct testimony was interlaced with differing references to his having been off heroin for at least one month, 6 weeks and two months, the clear implication being that he had no need for heroin possession or intent to distribute and sell it. He testified that he was en route from his home to his methadone clinic and, in doing so, took a most circuitous route, passing along 112th Street, which he knew was a shooting gallery. His attorney again presented the issue of his route by asking several questions as to the indirect route taken, which was never satisfactorily explained except that the accused man stated he sought to avoid encountering members of a motorcycle club whose location he never defined in relation to the path he took or the one he avoided.

A New York Criminal Lawyer said on cross-examination of the accused man, the prosecutor explored the very areas which had been inquired into on direct and, for the most part, the extent of the cross-examination resulted from the vague, imprecise and inconsistent responses by the accused man. Thus, when questioned as to whether he had in fact stopped using heroin before joining the methadone program, he responded that he was trying to stop then. It was followed with the response that he wasn’t using it at that time. While, on direct examination, he claimed to have been off heroin for varying periods of time, on cross-examination he admitted he was not totally straight at the time of his arrest but was working on it. Although the dissent finds fault in the questions pertaining to the methadone program, it was the accused man who first injected the issue when he endeavored to show that he was off heroin and, accordingly, had no need to shoot up. Under the circumstances, inasmuch as the issues were explored extensively by the accused man on his direct examination, it would be unfair and unbalanced to preclude the prosecution from legitimate cross-examination. Contrary to the view expressed by the dissent, Mental Hygiene Law was intended to apply as a shield, not as a sword and, based on record, does not operate to preclude questions on the very subject introduced by the accused.

On this record, the court finds that there was no denial of the accused man’s right to a fair trial. In view of the extent of the accused man’s direct examination, it would be palpably unfair and unreasonable to limit the prosecution on the very significant issues raised to establish the defense that defendant was off the habit. The accused man opened the door by admitting that although he had been addicted to heroin since he was 19 years of age and had used drugs for twenty-years but he discontinued such use since he attended the methadone program months prior to his arrest. It is obvious that his defense was keyed to the fact that he had no need to deal in or get involved in a case of heroin possession since the financial demands of the habit had been eliminated by his being a part of the methadone program and that his being by coincidence on 112th Street, the shooting gallery, was to avoid some unsavory characters whose location he was unable to pinpoint. Moreover, a New York Drug Crime Lawyer said the proof of guilt was overwhelming, the accused man, having been found with heroin possession of 24 glassine envelopes after being observed for a period of time by an officer who had monitored his actions by use of power binoculars from a second story window. Under the circumstances, considering all of the evidence, the unquestioned overwhelming proof of guilt and the absence of any objection to preserve the issue for review on appeal, at most there was harmless error.