New York

Published on: June 23, 2012

Can the Agent of a Purchaser of Narcotics be Convicted of Drug Sale?

by Stephen Bilkis

This is the case wherein the court reiterated its New York rule that one who acts solely as the agent of a purchaser of narcotics cannot be convicted of the crime of criminal sale of a controlled substance.

A New York Criminal Lawyer said that an undercover police officer befriended the defendant in various bars. The police officer, disguising as a drug user, thereafter mentioned to the defendant that he was interested to buy ecstacy. The defendant indicated that he might be of assistance in doing so and invited the undercover to call him whenever needed. In the course of their meeting in a bar, the police officer advised the defendant of his intention to buy cocaine or heroin. The defendant estimated the cost of the quantity of approximately four ounces of cocaine which was between three and four thousand dollars.

After some days, the defendant and the police officer proceeded in a bar in Manhattan. The defendant entered the premises alone, presumably to meet the man who was the seller. The defendant reported to the police officer that the price of the narcotics would be $4,000. The police officer paid the amount and the defendant re-entered the bar to give the payment to the seller. The two proceeded to a discotheque where the actual delivery of the drugs took place.

Published on: June 23, 2012

Court Discusses Possible 5th Amendment Violation

by Stephen Bilkis

Decisions to protect the public from a person who is violently mentally ill can create many fundamental issues of law and civil rights. This legal quandary has been a puzzlement for Americans since our country began. Freedom to live our lives without the fear of the Federal Government removing our freedom without the benefit of a trial before a jury of our peers is fundamental to our belief systems. However, there are times that we must question the benefit of releasing someone who will almost definitely commit a violent crime if they are ever released from an institution. On May 26, 2011 the Supreme Court of New York held a probable cause hearing to determine if a man who was a detained sex offender should remain incarcerated after his pending release date because of his need for civil management.

The Mental Hygiene Law of New York provided the government with a means to deprive citizens of their right to freedom if they were determined to be a threat to themselves or others based on their mental health. Section 10.06(k) of the Mental Hygiene Law does not provide a different rating for sex offenders (sex crimes) who are dangerous and those who are not when recommending civil management. Once an offender has been determined a sex offender who may require civil management, the only requirement is probable cause to detain the subject post release or pre-trial.

The case that was brought before the court in 2011, disclosed that this law was possibly an affront to the United States Constitution. As such, the attorney for the defendant, filed a motion for the Supreme Court to review the Constitutionality of the law under the Fifth Amendment to the United States Constitution. The Supreme Court examined the conditions of the case. The case involves a man who is detained as a sex offender pending an trial for additional crimes. The trial court in his preliminary hearing found him to be in need of evaluation by the State Office of Mental Health. After the OMH review, it was recommended that the defendant be released from detention under appropriate supervision and treatment into the community pending a hearing of his case. The judge determined that the severity of the charges and the risk to the community was too severe to allow for the release of the defendant pending trial.

Published on: June 23, 2012

sex crimes

by Stephen Bilkis

In New York when an offender commits a sexually related offense, he or she is charged a fee that is designed to defray some of the costs that are incurred by the courts for the prosecution of their case. The surcharge is usually $200.00 plus a victim fee of $10.00. A New York Sex Crimes Lawyer said that some offenders are entitled to request that the court defer their surcharge if they can show that it will pose an undue hardship to them or their families. However, anyone who is charged with a crime that requires that they serve more than 60 days in jail are determined to not be able to defray the surcharge. The money is removed from their inmate pay for work that they perform while they are incarcerated. It is therefore, not considered to pose an undue burden to them to pay it.

Even if the charge is deferred, the offender will be expected to repay the fee, it only postpones the debt until a time when the offender is more capable of repaying the debt. The court has also ruled that it is not practical to file a motion to defer this payment until an offender has completed the term of his sentence. In other words, if a person has committed a sexually based offense and is convicted, he is responsible to pay this debt to the state. If he files to have the debt deferred before he has completed his prison sentence, it will be denied as a premature request. It is not considered to be an undue burden on a person who is incarcerated. A Nassau County Sex Crimes Lawyer said it can only be deferred if a person demonstrates that the cost of the debt is an undue burden on the offender after they have been released from incarceration and are actively attempting to support themselves or their families.

On July 10, 2003, an offender in Kings County, New York, was convicted of attempted burglary in the second degree. He filed a motion on March 24, 2007, to defer payment of the surcharge because he stated that it was posing an undue hardship on his family. He was sentenced upon his conviction of five years to serve, then five years on parole. He contends that he is not working while in prison and receives no prison wages. He stated that he does not have a means of income or property and that he is indigent. A New York Sex Crimes Lawyer said the prosecution argued against his deferral of the payment. They contend that he committed the crime and that he is sentenced. He will be incarcerated for five years and then on parole for five years. To grant his request to defer payment would be an injustice to the citizens of the state and to the victim. The intent of the surcharge is to help the courts defray the costs that this offender created when he violated the crimes of this state. He is not entitled to defer the surcharge as it is an important way to insure that offenders are made responsible for their actions.

Published on: June 23, 2012

Court Determines Probable Cause for Weapons Charge

by Stephen Bilkis

Parents have told their teenagers for years to watch the company that they keep. That is especially true if the teens are associating with persons who are likely to commit a crime (felony or misdemeanor). The courts are full of people who were in the wrong place at the wrong time based on the company that they were keeping. Some of these people are completely innocent of any wrongdoing. In many cases, just being present with another person when they commit a crime is enough to qualify as party to a crime. Just by being there, the person may be charged with party to a crime of the crime that the other person commits. That rule is especially true if the person does not report the crime that they were present at. Reporting the crime, is an excellent way to show that the person had no intent to be involved in any wrong doing that occurred in his or her presence. Not reporting the crime can also be used to show intent to be involved in the crime.

In one case that was in the court of appeals of the State of New York, on June 26, 1979 dealt precisely with that problem. It was almost ten o’clock at night on March 11, 1978 when four police officers, three male detectives and one female uniformed officer in plain clothes were observing the actions inside a novelty shop on 42nd Street between 7th and 8th Avenues. The police officers watched as two brothers tried on shoulder holsters for firearms. The two brothers were in the company of a female who was the girlfriend of one of the brothers. The brothers purchased two shoulder holsters. The officers observed the transaction and observed the holsters being placed into a bag and given to the men. The officers observed the men and woman leaving the store and walking east on 42nd Street toward Seventh Avenue. The police officers began to follow the group.

The three people continued walking, but they turned around and looked at the police officers behind them several times. They changed directions and took circuitous routes making note that they were obviously being followed. One of the men began to walk in front of the others and gained on them by about twenty feet. The other two remained behind. The police officers also split up to maintain the proper surveillance. The two male detectives followed the man who had split off from the others. The female officer remained with the other male and the female. She followed them from a distance of about twenty feet.

Published on: June 23, 2012

Court Looks at Intent in Criminal Assault Case

by Stephen Bilkis

Sometimes, the cases that reach the Supreme Court on appeal represent a question of law that is similar among several cases. When this happens, the cases are grouped into one with several cases included. One such composite case involved a defendant who was indicted for attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree. A New York Criminal Lawyer said he was arrested for shooting a man with whom he had gotten into a disagreement. They had known each other for many years before the disagreement turned violent. The only witness to the altercation was the victim himself. The victim had originally told the police that he did not know who had shot him. It was not until later that he identified his acquaintance as the perpetrator of the assault. The defense attorney for the defendant attempted to have expert testimony presented in court on the inadequacies of eyewitness identifications. The trial court denied his request.

The judge instructed the jury that the defendant could only be convicted of the charge of first degree assault if he caused serious physical injury to the man by means of a deadly weapon with the intent to cause serious physical injury. They were charged that to convict him of second degree weapon possession, they had to prove that the defendant possessed the loaded gun, that he possessed it knowingly, that the gun was operable, and that he had the intent to use it with unlawful intent against the man who was shot. The jury acquitted the defendant of attempted murder and second degree possession of a weapon. He was convicted of first degree assault. A New York Criminal Lawyer said the defense attorney objected to the verdict in court because he maintains that the fact that the defendant was acquitted on the weapon possession count that he could not be convicted for the assault with that weapon.

The trial court rejected the argument of the defense because they claimed that it was not contradictory for the defendant to have possessed the weapon without an intent to use it illegally. He had possession of the weapon without intent to assault anyone earlier in the day before he decided to use it to shoot the victim. The Appellate court agreed on the appeal and upheld the conviction.

Published on: June 22, 2012

Court Hears Motion To Supress Search Warrant

by Stephen Bilkis

On September 25, 2003, the Associate Village Justice of the Supreme Court, issued a search warrant directed to “any police officer of the County of Nassau.” A New York Criminal Lawyer said the search warrant found that there is probable and reasonable cause for the issuance of the warrant to make a search with the inspector and his agents, between 09/25/03 and 10/02/03 in the hours between 6:00 A.M. and 9:00 P.M. of the entire premises in 335 Princeton Street, Westbury, NewYork. The warrant categorically states that the seizure of the evidence shall be limited to the taking of still photographs and videotape pictures of the inside and outside of the premises.

The Senior Building Inspector of the Village of Westbury believed that the subject premises has been used or is being used as a two (2) family dwelling and the cellar is being used as an illegal apartment dwelling in violation of sec. 79-2, sec. 83-6, sec. 112-7, sec. 184-4, sec. 248-6 A and sec. 248-283 of the code of the Village of Westbury and NewYork State Multiple Dwelling Law sec. 30 and sec. 34. A Supervisor in the Department of Public Works testified that the garbage generated from the home was 3 to 4 times the normal amount at every pick up.

Subject to the defendant’s motion to suppress, the parties stipulated to the receipt into evidence of the “return” on the warrant indicating what was seized during the search.

Published on: June 21, 2012

Court Determines if Jury Instructions Were Misleading

by Stephen Bilkis

In the early 1970’s the rape law in New York required that the complaint of the victim had to be corroborated by a third person in order to obtain a conviction. A New York Sex Crimes Lawyer said this seems archaic these days and made it almost impossible for a rape victim to obtain justice against her attacker. In one case of a woman who was walking home from the bus stop late at night, a man with a knife followed her and forced her into an abandoned stairwell. He told her that he was going to rape her and forced her to undress while holding the knife to her throat and face. Once she was disrobed, he held his cigarette lighter up to her lady parts. She felt the heat from the lighter and fought to get away. He threatened her again at which time she stopped resisting for fear that he would cut her.

A neighbor in the area called the police because he saw the woman get shoved into the stairwell and reported that a robbery was in progress at that location. A police car with two officers responded to the area. The officers found the man still raping the woman. They arrested him and collected the cigarette lighter and the knife as evidence. They also noticed that the woman had a cut on her cheek from the knife, just below her right eye. The woman was transported to the hospital where a doctor performed an examination. He noticed that the victim had a cut on her chin as well and that there were physical signs that the rape was culminated.

At the trial of the man, the judge did not inform the jury that corroboration was required to convict on the crime of rape. A New York Sex Crimes Lawyer said the defense filed a motion to overturn the guilty verdict that the man received based on that fact. The defense claimed that it was a fatal error to not instruct the jury that corroboration was necessary. Their contention being that since no one saw whether the woman agreed to have sex with him or not, minus corroboration, the jury would have been unable to convict him of rape.

Published on: June 21, 2012

Potential Juror Misconduct Reviewed In Sex Crimes Case

by Stephen Bilkis

It is difficult to understand the immensity of the responsibility that serving on a jury can be for some people. In this age of electronic information obtainable on the internet and even on a person’s telephone, it can be a daunting task for a juror to follow the instructions provided by the judge and make a determination only on the information that is presented in the courtroom. It is no surprise then when a juror is found guilty of misconduct for investigating a case on their own to attempt to help them make their decisions. As students, we are all taught to research a topic before we can make an informed opinion and not to rely solely on information that is provided by word of mouth. A New York Criminal Lawyer said when assigned to a jury and told that they are not allowed to make an informed decision based on research, many can feel lost and compelled to research the case on their own. This was the case, with one juror who was sitting on a non-sequestered jury, hearing the details of a serial sex crime offender’s case (rape). During the trial, the woman went to dinner with several friends and their acquaintances.

At that dinner, the woman brought up some of the details of the case that she was sitting on the jury for. She stated that the case was about a teen aged defendant who had cut up and raped a woman as part of a gang initiation. She allegedly stated that she had made up her mind about the defendant and his guilt in the situation. However, she stated that she knew she had a duty to deliberate the case with the other jurors before she actually made up her mind. She stated that the jury was a diverse group of people and she would need to hear what everyone had to say about the situation. She was unaware that one of the dinner guests was a defense attorney until later that night when they were walking to the train station. As they were walking, the woman talked to the attorney and found out that she was a defense attorney. The woman asked the attorney what she thought about DNA evidence because she had Googled the defense attorney involved in the case on her computer and discovered that he had a private practice. She asked pointed questions about DNA evidence and if she had ever had an opportunity to represent anyone who had their DNA match a crime several years after the offense had occurred.

The defense attorney informed her that it was not appropriate to discuss the case and that she could not answer the question for her. A Manhttan Criminal Lawyer said that the juror told the attorney that all of the information was in, but that the jury had not received the charge yet. The attorney attempted to change the subject. The following Monday morning, the defense attorney who worked for Legal Aid discussed the situation with her supervisor and her supervisor contacted the defense attorney who was handling the case. It was several days later before the chain of phone calls got to the correct people. By that time, the defendant had been convicted of the crime. As soon as the defense attorney for the defendant learned of the juror’s impropriety, he filed a motion for a mistrial on the case.

Published on: June 20, 2012

Court Discusses Sex Offender Registration Act

by Stephen Bilkis

On January 21, 1996, the Sex Offender Registration Act was created by the legislative body of the New York State legal system. It provided that each offender who commits a sexually related offense, must be registered with the state as a sex offender. A New York Criminal Lawyer said the risk level that is assigned to each offender is based on that offender’s prior criminal history and the chance that the offender will commit the same or similar offence in the future.

When an offender commits a sexually related offense, they are provided with a hearing date where the facts and circumstances surrounding their most recent conviction are compared with any prior convictions. This comparison is designed to look for trends in behavior that could predict the actions of the offender in the future. Since, no one in the justice department, claims to be a fortune teller, there is no truly accurate measure of whether or not, an offender will commit an offense in the future. Bearing this in mind, the courts must look at the actions that this person has taken in the past. Courts have historically been resistant to including previous criminal activities in the measurement of current convictions. Just because a person has offended in this manner in the past does not necessarily mean that the person committed that crime on that date. A Westchester Criminal Lawyer said this contention of law is why it is not admissible for a prosecutor to discuss the offender’s predilection to commit a particular type of offense in court unless they have received prior approval from the court to do so based on a direct link to the offense that is at trial.

That is not the case when discussing the risk for recidivism of a sexually based offender in the legal system. History can show if an offender has an uncontrollable predilection to committing the offense that he is being tried for. For instance, if an offender has committed ten prior rapes, the chances that he will rape again are logically pretty good. However, if a person was convicted of rape under circumstances that were shaky at best, and it is the only offense that is in the person’s criminal history, he is less likely to commit the same or similar offense again. He is certainly less of a risk than the offender with ten like crimes prior to the conviction of his eleventh offense.

Published on: June 19, 2012

Defendant Contends Violation of Drug Reform Act

by Stephen Bilkis

The Facts:

On 21 March 2002, defendant was sentenced in Michigan to a two-year probation following his plea of guilty to attempted home invasion in the first degree under Criminal Law.

A New York Criminal Lawyer said that on 22 August 2003, defendant was charged in Bronx County with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees, respectively.