New York

Published on: October 12, 2012

Court Discusses Constitutionality of Prison Reforms Law

by Stephen Bilkis

The case refers to an appeal submitted by the Texas prison officials for the denial of their motions to terminate prospective relief by the district court.

The relevant facts and procedural background of the case has transpired for almost 30 years. A New York Criminal Lawyer said that several criminal inmates filed claims against the director of the Texas correction facilities for malpractice and a violation of former’s civil and constitutional rights in the conduct of detention conditions and practices.

In 1992, judgment was rendered by the court. Several years have passed, the defendants filed a motion to vacate said judgment and a month later a law was enacted by Congress in relation to prison litigation reforms. Under the new law, “federal courts may grant or terminate prospective relief in prison litigation subject to certain standards and they may also refuse to terminate prospective relief only upon specific findings regarding the continued necessity of such relief.” This was the basis used by the corrections board of Texas, who seek to terminate the prospective relief of the judgment against their favor.

Published on: October 12, 2012

Court Discusses Specific Elements of Petit Larceny

by Stephen Bilkis

In this criminal case, shortly before 10 p.m. on May 16, 1969, the police were summoned by a neighbor to investigate a breaking and entering at the home of the spouses’ victims. The police officers were the first to arrive at the scene. A New York Criminal Lawyer said the first officer positioned himself at the front door while the other officer entered the dwelling through the back door. Upon entering the dining area of the victim’s home the officer Howell saw appellant, informed him that he was under arrest and ordered him to stop. Nevertheless, appellant fled from the house through the front door where he was apprehended by the other officer. Appellant, who was wearing socks on both hands and holding a screwdriver, was handcuffed and searched but no personal property belonging to the spouses was found in his possession.

A Florida Petit Larceny Lawyer said that, the officer continued his search of the house and apprehended defendant in a bedroom. He had in his possession a Masonic ring, watch and suit coat all of which belonged to the husband victim. Also found in the bedroom was a pillowcase which contained a razor, cigarettes and shaving cream.

A New York Criminal Lawyer said that, at the trial the husband victim testified that the ring and watch were Christmas presents and were cherished by him but no monetary value for the watch; ring or suit coat was ever established. Nor was evidence offered on the value of the personalty in the spouses household. The only evidence of the value of any item in the household was the husband victim’s testimony that $70 was missing from his dresser drawer.

Published on: October 11, 2012

Court Hears Child Abuse Case

by Stephen Bilkis

The issue being discussed in the appeal filed before the court is whether the Louisiana child protection workers are entitled to absolute or qualified immunity for their commission of allegedly filing a false complaint that seeks to remove the custody of two children from their legal parents.

A New York Criminal Lawyer said the appellate court for the Western District of Louisiana ruled that the guilty workers are only entitled to qualified immunity in a suit for damages filed against them.

The defendants are child protection workers of Louisiana’s protective service. One of their tasks is to conduct investigations and make the necessary reports of child abuse and neglect. Upon arrival at conclusions of evidence purporting to be a case for child abuse or neglect, the workers’ findings must be submitted to the local parish district attorney without delay or they may opt to file a verified written complaint instead for any probable cause of child abuse or neglect.

Published on: October 11, 2012

Court Discusses Crime of Petit Larceny in Conjunction with Robbery Charges

by Stephen Bilkis

Appellant was charged by an indictment of committing the crime of robbery. The trial court instructed the jury on robbery and on the lesser offense of attempted robbery and, in so instructing advised the jury that it could bring in one of three verdicts: 1) not guilty, 2) guilty of robbery, or 3) guilty of attempted robbery. A New York Criminal Lawyer said the appellant’s trial counsel specifically requested the trial court to instruct the jury on the lesser included offense of assault with intent to commit robbery, aggravated assault, and petit larceny, upon the theory that such offenses are within the dictates of the Supreme Court’s previous decision.

In rejecting the foregoing request, a New York Criminal Lawyer said that, the trial court observed: I find it difficult to believe that a jury could logically and legitimately determine that assault with intent to commit the crime, aggravated assault or petit larceny could in this instance, In view of the proof shown, be considered lesser offenses. Now it is the interpretation of this Court of the Brown Decisions and the Decisions that the Court, of the Supreme Court of Florida, in the Gilford Case expressly overruled those portions of those decisions wherein the Court has mandated to charge on all lesser included offenses, and left it to the point wherein Only when there was proof submitted that would enable the jury to determine guilt of a lesser offense should the Court charge on it.’

The issue in this case is whether the trial court erred in its decision.

Published on: October 10, 2012

Court Discusses Concept of Settled Jurisprudence

by Stephen Bilkis

This is an appealed case from the US District Court for Georgia. The district court dismissed the appellant’s complaint on the basis of the application of a settled jurisprudence in his case, which “held that a state prisoner’s claim for damages is not cognizable if ‘a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,’ unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated.” A New York Criminal Lawyer said the issue raised in the appeal is whether or not a claim for damages and declaratory relief filed by the state prisoner is barred by the rule on the settled jurisprudence. The state prisoner in filing his claim challenged the validity of the procedures of his extradition from Georgia to New York. The appellate court reversed the dismissal of the district court.

The accused was serving a twenty-five year sentence at the federal prison located in Kansas. The appellant was later on extradited to Suffolk County, New York and was indicted of another criminal suit for which he served another twenty-five years to life. In the year of 2000, upon the lapse of time of his release, the convicted appellant was arrested with protest on his part because he was not given the signed extradition warrant to waive his extradition rights or habeas hearing and then he was extradited to New York to serve sentence for another criminal conviction.

As a consequence, he filed a verified complaint at New York District stating defendants’ violations of his constitutional right and seeking injunctive relief and claim for compensatory damages. The action was referred back to Georgia District Court, which dismissed the suit for failure to state a claim wherein relief could be granted pursuant to a statute. The major contention of the district court is finding the action as premature since the appellant failed to allege that his sentence or conviction for the crime charge was declared invalid. Thus, this appeal is filed.

Published on: October 10, 2012

Court Decides Whether to Issue Writ of Heabeas Corpus

by Stephen Bilkis

Appellant, who was petitioner below in a habeas corpus proceeding, seeks reversal of an order of the trial judge denying the writ and remanding him to the custody of the appellee, Custodian of the Florida State Prison. The point for determination on this appeal is the legality of the sentence of the appellant in view of the apparent inconsistencies between Section 811.301, Florida Statutes, F.S.A. and Section 817.01, Florida Statutes, F.S.A.

A Franklin Criminal Lawyer said that, appellant was informed against in the Circuit Court for Franklin County by an information in two counts, reading in part as follows: Appellant, did then and there designedly by false pretense, and with intent to defraud, obtain from another person property, to-wit: $10.00, $10.00, and $5.00 from a certain individuals by promising to heal their illness and infirmities and then absconding with their money, knowing that his promises to heal were false. Second Count: A New York Criminal Lawyer said the appellant did then and there practice the healing art without first having obtained a certificate or proficiency in the basic sciences, by professing to heal a certain individuals for the sum of $10.00, $10.00 and $5.00.

Upon arraignment, a Franklin Criminal Lawyer said that, appellant pleaded guilty to the offense condemned by the first count and the second count was nolle prosequied. On September 26, 1955, he was sentenced to five years imprisonment in the State Prison under the first count of the information. When he began serving the sentence does not appear from the record. On March 26, 1956, appellant, without benefit of counsel, filed in the Circuit Court for Union County his petition for writ of habeas corpus contending that the information pursuant to which he was convicted was defective and that he had been denied counsel as well as a trial by jury. After hearing the matter, the Circuit Judge on April 14, 1956, found that the questions raised by the petition were not sufficient to justify the issuance of the writ of habeas corpus. A New York Drug Possession Lawyer said that, the Judge thereupon denied the writ and granted to the appellant the right of appeal. Reversal of this order denying the writ is sought by this appeal.

Published on: October 9, 2012

Defendant Charged with Drug Possession

by Stephen Bilkis

A New York Criminal Lawyer said 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. 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 New York Criminal 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”.

Published on: October 9, 2012

Court Hears Conspiracy Case

by Stephen Bilkis

A New York Criminal Lawyer said that, the defendant appeals his conviction after trial to a jury for conspiring to possess cocaine with intent to distribute it, in violation of 21 U.S.C.A. § 846, and to distribute it, in violation of 21 U.S.C.A. § 841(a)(1) (drug possession). This court recently affirmed an earlier conviction of defendant for conspiracy to possess and to distribute heroin. On the present appeal a Georgia Heroin Lawyer said that defendant contends that the government arbitrarily has carved a single conspiracy to deal in narcotics into separate heroin and cocaine conspiracies in violation of his Fifth Amendment right against twice being placed in jeopardy for the same offense.

A Georgia Heroin Lawyer said that, the government’s proof in the heroin conspiracy trial established that defendants arranged sales of heroin for their cocaine customer a Detective, who unknown to them was an undercover DEA Agent. Co-defendant, who pled guilty, and the Detective testified against defendant in both trials. The government presented to the jury portions of defendant’s own testimony from the heroin conspiracy trial in the trial on the cocaine conspiracy charge. During July 1976, conspiratorial negotiations involving cocaine and heroin went on simultaneously. The major events proven in defendant’s trial on the heroin conspiracy charge which we discussed in our earlier opinion affirming that conviction, were also central to the government’s proof against defendant’s in the trial on the cocaine conspiracy charge.

The issue in this case is whether defendant’s claim for double jeopardy should be granted.

Published on: October 8, 2012

Man Receives Life Sentence for Distributing Heroin

by Stephen Bilkis

In this drug offense, petitioner was a 21 year old heroin addict. On September 18th, two agents of the Sheriff’s Department of Louisiana, accompanied by a paid informant, and encountered petitioner. Aware of petitioner’s addiction, they asked him whether he had any heroin. He answered that he did not but agreed to “score a bundle” for them. This jargon describes the purchase of 25 packets of individual doses of heroin, a retail transaction. Petitioner telephoned his “connection” (i.e. his supplier), the agents provided the funds to enable him to make the purchase and he left to accomplish the transaction. He returned with 22 packets. The agents took 19 and allowed him to retain three.

Some months later, a New York Criminal Lawyer said that petitioner was arrested, tried and convicted of distributing heroin. Petitioner testified at trial. He did not deny the facts set forth above, but contended that he was entrapped. He admitted that his addiction required five to six packets of heroin each day, but he was not able to afford that much. He paid $10 to $12 per packet. He was employed as a carpenter earning $3 per hour, but he did not work steadily. He admitted that he had previously been convicted of two felonies, burglary and theft by fraud. His wife testified that, while she also worked, her husband was a good provider for her and their one child. A New York Criminal Lawyer said that petitioner was sentence to life imprisonment without parole for distributing heroin.

The issue in this case is whether petitioner’s sentence is grossly disproportionate to his crime as to contravene the Eighth Amendment’s prohibition of cruel and unusual punishments.

Published on: October 8, 2012

Defendant Contends Confession was Coerced

by Stephen Bilkis

In this criminal case, a New York Lawyer said the defendant was arrested by a Police Officer at 144th Street in Manhattan and charged with possession of a 9mm firearm. While en route to the 32nd Precinct, he initiated a conversation with the Police Officer in which he asked him to let him go and stated that he would help him by bringing in additional guns. They arrived at the precinct at approximately 7:50 p.m. and while the Police Officer elicited pedigree information, the defendant continued to talk about bringing in additional guns. The defendant, who was “kind of fidgety”, talked continuously and was “over-excited”, told the Police officer that he “used” heroin. At 9:05 p.m. A detective read Miranda warnings to the defendant. The defendant indicated that he understood his rights and wished to answer questions. Thereafter, the Police Officer and the Detective spoke with the defendant intermittently. During this period the defendant also was questioned by homicide detectives from the 32nd Precinct. Thereafter, the defendant gave a detailed oral statement to the detective in whom he explained where and from whom he had purchased the 9mm weapon and said that he had purchased cocaine from the same location. At approximately midnight, the defendant made two telephone calls: one to his wife and the other to an unidentified male. He told the man that he had been arrested, that he was “working with some good police officers” and that the man should gather the guns and gave them to the defendant’s wife. The Police Officer told the defendant that he would tell the District Attorney’s Office that the defendant was cooperating. At approximately 2:00 a.m. the defendant’s wife arrived at the precinct and the defendant, in the Police Officer’s presence, instructed her to get the guns. At about 4:00 a.m. she returned to the precinct with a Cobray Mac 11 gun, a .380 caliber pistol and matching ammunition.

The defendant was then transported from the 32nd Precinct to Manhattan Central Booking for arraignment. He complained of being ill and asked to see a doctor. Central Booking, therefore, would not accept him and he was returned to the 32nd Precinct. The Police Officer filed a felony complaint on the arrest with the Manhattan District Attorney’s Office. The Warrant Officer again transported the defendant to Manhattan Central Booking. At 10:15 a.m. the Warrant Officer received a call from the Police Officer asking that he return the defendant to the 32nd Precinct and the former did so.

At 11:45 a.m. another Detective in the Brooklyn South Homicide Task Force learned from the Police Officer that the defendant, a suspect in the December 20th shooting was being returned to the 32nd Precinct. Defendant was questioned by narcotics detectives from Manhattan South. The detective questioned the defendant, asking him about a gun trafficker in Brooklyn. Twenty minutes into their conversation, he told the defendant that he and a Sergeant were from Brooklyn and “that they knew that he had done a shooting in the apartment on Parkside Avenue.” The defendant shook his head “No” and the detective repeated that they knew he had done it and wanted to hear his version of what had happened. The defendant stated: “He tried to f* * * my wife. My wife called me and I went over there.” The detective then showed the defendant the Miranda waiver, signed the previous evening, and “reminded him that he had waived his rights, signed the Miranda form and agreed to make a statement.” The detective then re-administered Miranda warnings and the defendant once again indicated that he understood. During the next hour the defendant made statements concerning the shooting. The defendant, also, told the detective that he was a heroin user.