New York

Published on: October 17, 2012

Defendant Claims Jury Instruction was Inappropriate

by Stephen Bilkis

In this case, Appellant appeals from a judgment convicting him of the crime of robbery. Appellant’s only contention on appeal is that the trial court erred in failing to give proper instructions as to the lesser included offenses of grand larceny and/or petit larceny. Appellant conceded that he did not request such an instruction or object to the charges actually given.

Appellant was charged by information with the crime of robbery in that he did by putting in fear, unlawfully and feloniously rob, steal and take away from the person and custody of the complainant, one (1) lot of coins and currency of the United States of America, of the value of Fifty-nine Dollars and Seventy-two cents ($59.72).

The night manager of a service station was working on the date of the alleged robbery. He testified that Appellant and his co-defendant held him up late one night with a pistol, robbed him of all the bills and change he had on his person, and also took a sum of money out of a cigar box. A New York Criminal Lawyer said the arresting officer, who seized defendants in close proximity to the service station immediately after the robbery, testified that he found in defendants’ possession the sum of $59.72, and put this money in a sack which was introduced into evidence and which included one roll of pennies wrapped in a distinctive wrapper used by the service station.

Published on: October 17, 2012

Appellate Court Agrees Prejudicial Error Committed at Trial

by Stephen Bilkis

In this criminal case, defendant was convicted by a jury on three counts of willful attempt to evade or defeat his federal income tax due for the years 1970, 1971 and 1972, in violation of 26 U.S.C. § 7201. He was sentenced to one year imprisonment on each count, the sentences to run concurrently, and a $5,000 fine on each count. A New York Criminal Lawyer said the issues raised by defendant on appeal can be grouped into three categories: (1) government misconduct before the grand jury; (2) Jencks Act material; and (3) introduction of a 16-year-old military conviction for larceny.

The issues in this case are whether the issues raised by the defendant on his appeal that was grouped into three categories have merit.

The Court held that it finds no merit to the claims under the first two headings but concludes that it was prejudicial error to admit the military conviction into evidence. We reverse and remand.

Published on: October 16, 2012

Court Reverses Grand Larceny Charges

by Stephen Bilkis

An owner of a truck appeals for the convictions of grand larceny of a truck, petit larceny of its contents, and trespass on property.

It was started when a man took possession of the truck and began making monthly installment payments after agreeing to purchase it from a long-time friend. But before the full purchase price of two thousand dollars had been paid, the owner of the truck lent the man another sum of money. Eventually, because that sum had not been repaid, the owner of the truck took the truck, asserting in effect a security interest in the truck and a right to repossess it, even though the originally agreed-upon installment payments had by then been made.

The man assumed what had happened and he did not report the truck as stolen for seventeen days. A New York Criminal Lawyer said he merely thought that his friend had repossessed the truck because of his outstanding debt. Consequently, the deputy sheriff testified about his conversation with the owner of the truck. The sheriff further testified that the owner told him that he will not give back the truck to the man until he pays backs what the man owes.

Published on: October 16, 2012

Appellant Claims Statute of Limitations Had Run

by Stephen Bilkis

In this case, the Appellant raised on appeal his conviction on charges of conspiracy to commit a felony, to wit: grand larceny; and petit larceny. He was initially charged by information with grand larceny, conspiracy, and several counts of forging and uttering uniform air bills.

A New York Criminal Lawyer said the first information, filed on June 1, 1977, alleged that the offenses occurred between November 30, 1975 and June 14, 1975. The State filed a second information in open court on November 3, 1977, without objection from the defense counsel and with court approval. Thereafter, the appellant moved to dismiss the information on the ground that it had not been filed within the two-year Statute of Limitations. His motion was denied.

The informations alleged that Appellant was operating a kickback scheme with another person who worked for a company that provided air trays and livery service for transporting bodies by plane. A New York Criminal Lawyer said the accomplice entered a nolo plea to similar charges and turned State’s evidence. During the trial, he testified that he made out false air bills with information given to him by Appellant, inflating the shipment costs. After the company paid the bill, the accomplice claimed that he delivered the excess money to appellant either in person or through a jointly held safety deposit box.

Published on: October 15, 2012

Defendants Claim Insufficient Evidence in Theft Charges

by Stephen Bilkis

The petitioner was adjudicated delinquent on the charge of petit larceny of items valued at $100 or more but less than $300, a first degree misdemeanor. Although the State presented evidence about the items taken, it offered no evidence of their value. The petitioner failed to object, however, or to move for judgment of acquittal on this ground. The petitioner raised the claim for the first time on appeal, asserting fundamental error. The Fourth District held that the issue must be preserved for appeal. Similarly, in the conflict case, another petitioner argued for the first time on appeal that a delinquent adjudication for first-degree petit theft must be reduced to second-degree because the State failed to prove the value of the stolen items. The Second District Court of Appeal, relying on a similar case decision receded from on other grounds concluded that the failure of proof on the essential element of value was fundamental error and reversed.

In a similar case, the opponents were convicted of two counts of breaking and entering with intent to commit grand larceny. As did the petitioner, on appeal they alleged that the evidence was insufficient to sustain the conviction on the element of the value of the property stolen. The opponents contended that the State thus failed to present a legitimate case and that it constituted fundamental error. A New York Criminal Lawyer said citing a line of prior decisions, the court rejected the argument and held that unless the issue of sufficiency of the evidence to sustain a verdict in a criminal case is first presented to the trial court by way of an appropriate motion, the issue is not reviewable on direct appeal from an adverse judgment. Because the issue was not preserved, the court held that it was not open to appellate review.

After resolving the conflict issue presented, the Court turned to the petitioners’ contention that there was fundamental error committed as to them in that they were convicted of grand larceny when the State’s evidence did not support a conviction of grand larceny. Again, the petitioners claimed that the State failed to present sufficient evidence of the value of the items stolen. The court reviewed the record and held that the evidence was insufficient to support a grand larceny conviction. The court reversed for entry of a petit larceny conviction.

Published on: October 15, 2012

Appellate Court Reverses Grand Larceny Charges

by Stephen Bilkis

In this case Appellant, defendant below, filed this appeal from a final judgment of conviction and a sentence of three years probation entered pursuant to a jury verdict finding him guilty of two counts of grand larceny. Our review of the record reveals that appellee, the prosecution below, did not show, as set forth in the information, that the property at the time it was stolen had a fair market value of $100 or more. Accordingly, a New York Criminal Lawyer said the judgment and sentence entered below are reversed and the cause is remanded with directions to the trial court to enter judgment and sentence on the lesser included offense of petit larceny.

Appellant was charged, by information, with three counts of grand larceny. The trial court granted a directed verdict of acquittal as to one of these counts. The remaining counts charged appellant with unlawfully and feloniously stealing hubcaps, valued at $100 or more, from the lawful custody of its owner. A New York Criminal Lawyer said pursuant to a three day trial, the jury returned a verdict of guilty on these two counts. Thereafter, the trial court entered a final judgment of conviction and a sentence of three years probation from which appellant brings this appeal.

Appellant contends that appellee failed to prove by competent substantial evidence, as to one of the counts, the ownership of the stolen property and, as to both of the counts, that the fair market value of the property was $100 or more at the time it was stolen.

Published on: October 14, 2012

Court Discusses Jury Instruction for Lesser Included Offenses

by Stephen Bilkis

An accused man appeals his conviction for the offense of robbery with a deadly weapon, urging that the trial court erred in refusing to give requested jury instructions on the lesser included offenses of robbery with a weapon, robbery without a weapon, and petit larceny. A New York Criminal Lawyer said the court agrees with his position, reverse the conviction, and remand the case for new trial.

In declining to give the requested instructions, the trial court explained that there was no evidence to support an instruction on any crime other than that charged. The state argues that the lower court’s decision was justified, as the court was not obliged to instruct on any lesser included offense as to which there is no evidence. What the state and the lower court have apparently overlooked, however, is that in any case in which there is sufficient proof of the greater offense to go to the jury, there is inescapably proof of a lesser offense which is necessarily included within the offense charged. The conclusion is self-evident from a reading of the Florida Supreme Court’s seminal decision on lesser included offenses.

The facts reveal that the trial judge, whose order was there reviewed, fell into the same error as the court below by ruling that there was no proof to support a requested instruction that larceny was a lesser included offense to the charged offense of robbery. A New York Criminal Lawyer said in reversing the conviction, the Supreme Court explained that any lesser offense which is an essential aspect of the major offense is a necessarily included offense because the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence. Thus, in order to prove a robbery, the state must necessarily prove a larceny as an essential element of the major offense. This is so because every robbery necessarily includes a larceny.

Published on: October 14, 2012

Court Discusses Petit Larceny Case

by Stephen Bilkis

An accused man filed for an appeal from a final judgment of his conviction and a sentence of three years probation entered by a jury decision finding him guilty of two counts of grand larceny. A New York Criminal Lawyer said the district court however reviewed the record and reveals that the man’s opponent did not show, as set forth in the information, that the property specifically a hubcaps at the time it was stolen had a fair market value of one hundred dollars or more.

The man was charged with three counts of grand larceny and the trial court granted a directed decision of acquittal as to one of the counts. The remaining two counts charged the accused man with unlawfully and feloniously stealing of hubcaps (petit larceny), valued at $100 or more, from the lawful custody of a man and a woman. With a three day trial, the jury returned a verdict of guilty on the two counts. After that, the trial court entered a final decision of conviction and sentence the man of three years probation from which he brought the appeal.

The man contends that his opponent failed to prove by competent substantial evidence, as to one of the counts, the ownership of the stolen property and, as to both of the counts, that the fair market value of the property was $100 or more at the time it was stolen.

Published on: October 13, 2012

Court Decides Child Sex Abuse Case

by Stephen Bilkis

A New York Criminal Lawyer said the plaintiffs filed an appeal with the New York Appellate Court for the dismissal of their complaint against the defendants, who are police officers and government officials, on the grounds of absolute and qualified immunity.

he appellants sued the respondents because of their wrongful investigation, arrest and imprisonment by the law enforcers for the commission of criminal offenses, namely, kidnapping, rape and murder. The defendants raised the defense of qualified and absolute immunity in the performance of their official duties for the conduct of their police investigations that led to the arrest and incarceration of the plaintiffs.

The plaintiffs are parents under investigation for child abuse, child molestation and occult-related rape and murder for several years already. One of the defendants, an employee of the Texas human services, was assigned to their case. The parents of the plaintiffs file complaints for sex abuse allegations made by the latter to their children. This caused the children to live in a foster home where another defendant meets them on a monthly basis. The plaintiffs are a couple with separate children from their previous marriage. A Manhattan Criminal Lawyer said the male plaintiff was indicted with a criminal offense for allegedly sexually abusing one of his daughters. This prompted the emergency removal of their children from the plaintiff’s custody and where transferred to various foster homes. The other remaining defendant was the caseworker to one of the foster homes where the children resided.

Published on: October 13, 2012

Court Rules on Elements of Petit Larceny

by Stephen Bilkis

By information the appellant was charged in one count with breaking and entering a dwelling with intent to commit a felony, aggravated assault, in violation of § 810.01 Fla.Stat., F.S.A., and in a second count with aggravated assault, in violation of § 784.04 Fla.Stat., F.S.A. a Miami Petit Larceny Lawyer said that, on trial before the court without a jury the defendant was acquitted on the latter charge, and on count one was found guilty of the lesser offense (§ 810.05 F.S.A.) of breaking and entering a dwelling with intent to commit a misdemeanor, to-wit, petit larceny. The defendant appealed from that conviction.

A New York Criminal Lawyer said the husband and his wife owned a residence as tenants by the entireties. They had separated, and he had not resided in the home for more than a year. His wife lived there with their three children. He retained a key to the home. For the purpose of obtaining evidence against his wife, he and the defendant, a private investigator employed by him, entered the home through the front door using his key. While there they placed and secluded an electronic transmitter in the master bedroom, and disassembled the lock to a sliding glass door which separated the bedroom from the outside. Shortly thereafter, on a certain date at 2:20 A.M., the defendant, acting on instructions from him, entered the residence through the unlocked glass door into the bedroom, and secured certain flash photographs of his wife and a man in bed there. It was brought out by testimony of the latter persons that the defendant did not demand or take anything of value from the premises. Their testimony that the defendant had and produced a gun at that time was contradicted.

A New York Criminal Lawyer said that, the trial court concluded the evidence was insufficient to prove aggravated assault, acquitted the defendant of that charge, and did not find him guilty of a lesser included offense thereof. Consistent with acquitting the defendant on the separate charge of aggravated assault, the trial court held that the charge of breaking and entering with intent to commit aggravated assault was not proved, incident to convicting the defendant on the lesser offense of breaking and entering with intent to commit petit larceny.