New York

Published on: October 23, 2012

Defense Contends Unreasonable Delay in Sentencing

by Stephen Bilkis

Defendant is a violent predicate felon. On June 6, 1996, he entered a plea of guilty to the crime of assault in the second degree pursuant to Penal Law, Sec. 120.05(7), a subdivision which is applicable to assaults committed inside a prison facility. A New York Criminal Lawyer said he had been charged with three counts of this crime for viciously assaulting three correction officers with a sharpened toothbrush while being housed at the Rikers Island Correction Facility. At the time, he was incarcerated there under an earlier New York County indictment to answer for the crime of attempted rape in the first degree, more specifically, for forcibly throwing a woman to the ground on 42nd Street while shouting obscenities, demanding sexual intercourse and threatening death. With respect to the attempted rape charge, defendant, one-and-one-half years prior to the entry of the within plea entered a plea of guilty in satisfaction thereof. Despite the elapsation, now, of two years, he has yet to be sentenced in New York County.

A New York Criminal Lawyer said that, notwithstanding, and following four monthly adjournments before this bench, he claims a violation of C.P.L. 380.30(1), moving to divest the Court of jurisdiction that his conviction be vacated and the accusatory instrument dismissed. Defendant contends a failure to pronounce sentence “without unreasonable delay” has prejudiced him. By way of explanation, he sets forth that the 24 months of postponements of sentencing in New York County has been by acquiescence. The Court denied his motion.

The issue in this case is whether defendant is entitled to the dismissal of his case on the ground of failure to pronounce sentence without unreasonable delay.

Published on: October 23, 2012

Court Rules on Heroin Possession Charges

by Stephen Bilkis

In this drug offense case, defendant was found in his apartment with 6¼ grams of heroin about twenty to thirty minutes after a package containing 13 grams of heroin was delivered by mail to his apartment. Customs and postal inspectors had discovered the heroin in the package when it had arrived in the country at San Francisco. A New York Criminal Lawyer said the package was mailed from Thailand and addressed to defendant’s residence in Daytona Beach, Florida. The postal authorities arranged a controlled delivery of the package to defendant’s residence.

A Jacksonville Heroin Possession Lawyer said that, about twenty to thirty minutes after this controlled delivery had taken place, four officials, one a postal inspector, and another a customs agent, and the other two, Daytona Beach police detectives, entered defendant’s apartment under a valid search warrant. They found defendant in a bedroom with 6¼ grams of heroin on a coffee table in front of him. They conducted a search to find the remaining heroin. During this search, they found thirty packets of heroin, each wrapped in aluminum foil and containing a mixture which included approximately one milligram of heroin, in a drawer of a dresser in a bedroom across the hall from the room where defendant had been found. It was established at trial that these “dime bags” small packets wrapped in aluminum foil containing about one milligram of heroin are commonly used in passing heroin on the streets. The authorities also found some butts of marijuana cigarettes in the same bedroom drawer. While the authorities were searching the apartment, defendant remarked to them, referring to the thirty “dime bags”, “I bet you didn’t think I could package it up that quick”.

A Jacksonville Intent to Distribute Lawyer said that, the indictment charged possession with intent to distribute only the 6¼ grams found on the coffee table. The Government relied upon the 30 “dime bags” to prove that defendant had the requisite intent to distribute. Its theory was that the heroin found in packages suitable for street distribution indicated that defendant was a dealer in heroin; that he had received the 13-gram package delivered in the mail for the purpose of selling or distributing most or all of the 13-gram quantity; and that he therefore intended to distribute the 6¼ gram quantity found on the coffee table.

Published on: October 22, 2012

Court Looks at Elements of Burglary

by Stephen Bilkis

Sometime on July 14, 1995 at 11:30 pm two police officers were in a police cruiser and they were parked with the headlights turned off. A New York Criminal Lawyer said they were observing two men outside an auto mechanic’s garage which was already closed for the night. The two policemen were observing two men who were circling around a parked Chevrolet outside the auto mechanic’s garage.

A little later, the two men took out tools from a tool box they carried and they started removing the hub caps and the lug nuts of the parked car. A while later they were able to remove all the four tires of the car. They took the tires and the hub caps and loaded these into the trunk of their own car. Before they could start their engine the police officers came towards them and declared them arrested.

At the police station, the police officers charged the men for burglary, for possession of tools for burglary and for burglary of a conveyance. The two men pleaded not guilty and they also filed a motion to dismiss the two charges for burglary and the possession of burglary tools.

Published on: October 22, 2012

Court Discusses Mental Hygiene Law

by Stephen Bilkis

The complainant brought this action to recover damages for injuries he claims to have suffered as a result of being knocked down as he attempted to board a bus operated by the accused. At the time of jury selection, the complainant moved to preclude the accused from offering evidence of or in any way calling the jury’s attention to the facts of the complainant’s incontestable past use of heroin and his current participation in a methadone treatment program. A New York Criminal Lawyer said at the jury coordinating part, the judge determined that the accused would be precluded from any reference to the complainant’s current use of methadone or his participation in the treatment program. He reserved to the trial judge the issue of whether the complainant’s past use of heroin was admissible in the liability phase of the trial.

Following jury selection and prior to opening, the court granted the balance of the complainant’s motion and precluded the accused from mentioning or offering any evidence of the complainant’s past use of heroin. Given that there is a paucity of reported case law regarding the admissibility of such evidence in civil proceedings, the court files the decision to memorialize its opinion.

A New York Criminal Lawyer said the motion does not question whether a complainant’s use of heroin is admissible in the damages phase of a civil trial where the jury is assessing a variety of health and life issues relating to the complainant, such as life expectancy. In that context, with an appropriate foundation, testimony regarding the complainant’s heroin use would surely be admissible. Nor is it about whether the complainant was under the influence of heroin at the time of the accident so that his powers of perception or recollection might actually have been impaired by his heroin habit; nor whether the complainant was under the influence of heroin at the time of his testimony. The use of heroin by the complainant in those circumstances would be admissible even in the liability phase to impeach his credibility as a witness. Indeed, in all of those situations, proof of heroin use and addiction even by extrinsic evidence would be proper. The lone issue decided by the court on the branch of the motion reserved to it was whether the complainant’s past use of heroin was admissible as an act of moral depravity offered only to attack his credibility as a witness.

Published on: October 20, 2012

Court Discusses Elements of Grand Larceny

by Stephen Bilkis

On the night of the accident, a city police officer, while in his patrol car, stopped a man’s automobile in the area where the breaking and entering had occurred. An officer with the sheriff’s department saw a record player, a record player stand, assorted women’s clothing, and a rifle in the rear of the man’s vehicle. After the man was arrested, he tried to hide some cuff links, a watch, a ladies’ wrist watch, and other items.

The victim, whose home was broken into, identified several items in the man’s automobile that had been stolen from her home, including a white sweater, a three-piece suit, a stereo, and a watch. She estimated the value of the said items.

A New York Criminal Lawyer said the man was tried for and convicted of the crime of breaking and entering with the intent to commit grand larceny. But appealed from the decision and sentence based upon a jury verdict.

Published on: October 20, 2012

Court Decides if 3 Petit Larceny Convictions Amounts to a Felony

by Stephen Bilkis

In this case, the Appellant sought review of the sentences imposed based upon inaccurate sentencing guidelines scoresheet, and a written probation order that included a condition which was not pronounced orally at the sentencing hearing.

The court reversed the sentence imposed and remanded the case for resentencing.

A New York Criminal Lawyer said the predicate offenses, kidnapping and armed robbery with a weapon, were committed June 8, 1990. The guidelines scoresheet used at sentencing shows a total of 316 points, for a recommended sentencing range of twelve to seventeen years, and a permitted sentencing range of nine to twenty-two years. The trial court imposed a sentence of twenty years on the kidnapping conviction, and a probationary term of twenty years on the armed robbery with a weapon conviction. The probation was to be served consecutively to the kidnapping sentence.

Published on: October 19, 2012

Court Discusses Due Process Clause

by Stephen Bilkis

In this criminal case, petitioner fired several shots into the home of an African-American family and made a statement which he later retracted that he did not want the family in his neighborhood because of their race. A New Jersey Criminal Lawyer said that, he was charged under New Jersey law with, second-degree possession of a firearm for an unlawful purpose, (possession of a weapon), which carries a prison term of 5 to 10 years. The count did not refer to the State’s hate crime statute, which provides for an enhanced sentence if a trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a purpose to intimidate a person or group because of, inter alia, race. After petitioner pleaded guilty, a New York Criminal Lawyer said that the prosecutor filed a motion to enhance the sentence. The court found by a preponderance of the evidence that the shooting was racially motivated and sentenced petitioner to a 12-year term on the firearms count. In upholding the sentence, the appeals court rejected petitioner’s claim that the Due Process Clause requires that a bias finding be proved to a jury beyond a reasonable doubt. The State Supreme Court affirmed.

The issue in this case is whether petitioner has been denied of his right to due process.

The Court held that the Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.

Published on: October 19, 2012

Court Discusses Impeachment with Evidence of Prior Conviction

by Stephen Bilkis

This case is about an appellant who was adjudicated guilty, after a jury trial, for inciting a riot under Section 870.01(2), Florida Statutes (1981). Appellant argued that the evidence presented by the prosecution was insufficient to support his conviction. Although the sufficiency of the proof presented a close question, after thorough review, the court held that the State did present a prima facie case and that a judgment of acquittal was not required.

A New York Criminal Lawyer said the case however was reversed on the ground of evidentiary rulings as to prior convictions. The question concerns the impeachment of appellant under Section 90.610, Florida Statutes (1981), on the basis of two prior petit larceny convictions. The trial court ruled that these prior petit larceny convictions could be used for impeachment purposes and threatened to hold appellant in contempt if he took the stand and testified that he had not been convicted of a crime. Appellant did testify and on direct examination stated he had been convicted of a crime twice.

The old rules on Evidence provide that a witness was subject to being impeached with evidence of a prior conviction of any crime, excluding violations of a municipal ordinance. Jurisprudence prior to the amendment of the rules established that “a crime is a crime”. The argument that discrediting crimes must involve moral turpitude was expressly rejected.

Published on: October 18, 2012

Defendant Says Court Failed to Instruct the Jury Properly

by Stephen Bilkis

Appellant was charged with and convicted of robbery of property having a value of less than $100. He raises four points on appeal, one of which requires discussion and reversal. A Palm Beach Petit Larceny Lawyer said that, although the evidence presented at trial would have supported a conviction of petit larceny, appellant’s request for a jury instruction on that crime was denied. In a 1979 case, the Court held that larceny is necessarily included in the crime of robbery and that it is legally impossible to prove robbery without proving larceny.

The issue in this case is whether appellant is entitled to the reversal of his conviction for robbery.

The Court held that the Florida Rule of Criminal Procedure 3.510 expressly requires the trial court to charge the jury on any offense which is necessarily included in the offense charged. Appellee concedes it was an error not to do so, but argues the error was harmless. The Supreme Court held that it is reversible error per se not to instruct on the next immediate lesser included offense, while it may be harmless error not to instruct on an offense two steps removed from the offense charged. In reference to the charge sub judice “the determination of whether the refusal to instruct on larceny was reversible error would depend upon an application of the case to the facts of what transpired in the trial court.” Here, a New York Criminal Lawyer said there was neither charge nor evidence of property having a value of $100 or more. Consequently, petit larceny was the next immediate lesser included offense and the trial court committed reversible error when it failed to instruct on said crime.

Published on: October 18, 2012

Court Discusses Elements of Petit Theft

by Stephen Bilkis

This case is about an appeal filed by a juvenile from an adjudication of delinquency for robbery and a subsequent commitment to the Florida Department of Health and Rehabilitative Services.

A New York Criminal Lawyer said the central question presented for review is whether the state established a prima facie case that the respondent juvenile employed force, violence, assault or putting in fear–an essential element of robbery–in effecting a theft of jewelry from a three-year-old child.

The respondent was charged in a petition for delinquency before the Circuit Court for the Eleventh Judicial Circuit with the offense of robbery.