New York

Published on: March 18, 2013

Court Decides if Criminal Offense Disallows Adoption by Defendant

by Stephen Bilkis

A child was born on August 9, 2004. Since September 22, 2004, when the child was discharged from the hospital, on the basis of a petition that had been filed alleging that his biological mother had neglected him, the child has resided in the home of his maternal cousin and her husband.

A New York Sex Crimes Lawyer said the adoption home study prepared by a social worker employed by New York Foundling, the foster care agency that has care and custody of the child describes him as a healthy seven-year-old boy with no special needs who is developing age-appropriately, and who is beginning regular second grade classes. The home study also reflects the fact that the child’s maternal cousin and her husband have been married for over thirteen years and that they are both employed. The maternal cousin is a nursing assistant, and her husband is the Head Supervisor of the Custodial Department of a State College. Also residing in the home is the couple’s fifteen-year-old biological son. The social worker describes the biological son as healthy, doing well in school, and having a positive and loving relationship with the child. The adoptive parents, their son and the child reside in a three bedroom house in New York.

The couple has been involved in the child’s life since he was a baby. One can see that they love the child very much and that he means the world to them. A New York Sex Crimes Lawyer said they were observed by the social worker to be very attentive and affectionate toward the child, who lovingly refers to them as mommy and daddy. They share an inseparable bond with the child, and have a good understanding of his needs. They are providing effectively for his physical, emotional, and spiritual needs. The couple understand and willing to accept the moral and legal responsibilities of adoption. Their commitment to the child is deep rooted and they have made it clear that he knows that they are there for him. The child feels the same strong sentiments toward the family and although too young to fully comprehend adoption, he is a happy, well-adjusted child for he knows that he is loved and wanted. Based on the overall progress the child has made in the home, it is therefore recommended that the application for adoption submitted by the couple be approved and that the child be adopted by the caring family.

Published on: March 18, 2013

Defendant Seeks to Withdraw his Plea Based on Duress

by Stephen Bilkis

Defendant was indicted in three separate indictments by a Grand Jury charging him with two counts of assault in the second degree, escape in the second degree and resisting arrest; two counts of grand larceny in the third degree; and two counts of grand larceny in the second degree and one count of grand larceny in the third degree, respectively. Thereafter, a New York Criminal Lawyer said the People moved to permit defendant to withdraw his not guilty pleas to all three indictments and substitute therefor a plea of guilty to one count of grand larceny in the third degree with respect to the second indictment and one count of grand larceny in the second degree with respect to the third indictment, in full satisfaction of all three indictments and of a felony offense for which he had been arrested but not yet indicted.

On appeal defendant urges that the plea bargain was illegal because it encompassed dismissal of a felony complaint for which he had not yet been indicted. A New York Criminal Lawyer said the court ruled that while County Court had no authority to dismiss the felony complaint and did not purport to do so, the District Attorney had the discretion and authority to decline to continue prosecution of that offense. His agreement to do so as part of a negotiated plea is certainly legal.

Defendant next contends that his guilty plea to grand larceny in the second degree, a class D felony, permitted a maximum sentence of 3 1/2 to 7 years as a second felony offender. However, because the plea agreement provided for a sentence of 4 to 8 years in the event that defendant failed to make restitution of $11,000, defendant claims that his plea was illegal. We disagree. The Court viewed County Court’s action as an inadvertent misstatement. At the time of sentencing County Court properly sentenced defendant to a prison term of 3 1/2 to 7 years. It has long been the rule that a court has the inherent power to correct its own error in imposing sentence.

Published on: March 18, 2013

Defendant Contends She Did Not Know She was Possessing Drugs

by Stephen Bilkis

A New York Criminal Lawyer said this case involves a 17 year old juvenile who is challenging an adjudication made against her for possession of drug paraphernalia.

Case Background

The girl was driving her car with three friends. She was involved in a car accident. When the police arrived at the scene of the accident the driver’s side door was opened. The juvenile stated that the car belonged to her mom, but she used it quite often. The officer looked in the car through the open door and saw a glass item on the floorboard. He recognized it as a pipe that is often used to smoke illegal substances.

Published on: March 5, 2013

Defendant Charged with Criminal Facilitation in the 4th Degree

by Stephen Bilkis

An appeal was made by the accused man from a judgment of the County Supreme Court rendered on October 26, 1983, convicting him of four counts of criminal facilitation in the fourth degree, upon a jury verdict, and the imposing sentence. A New York Criminal Lawyer said the judgment was affirmed and the matter was remitted to the County Supreme Court for further proceedings pursuant to the Criminal Procedure Law.

Pursuant to the defense counsel’s request, the trial court charged criminal facilitation in the fourth degree as a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree. The accused man was ultimately found guilty of four counts of criminal facilitation in the fourth degree and acquitted of all other charges. The accused argues, as he did on his motion to set aside the verdict, that criminal facilitation in the fourth degree is not a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree and that the defect in erroneously charging such a request is non-waivable inasmuch as it goes to the court’s subject matter jurisdiction. A New York Criminal Lawyer said criminal Term resolved both issues against the accused man. Since the accused man effectively waived any error in the submission of the charge of criminal facilitation in the fourth degree to the jury, the Appellate Court affirms.

A comparative evaluation of the two operative statutes, grand larceny in the second degree and criminal facilitation in the fourth degree reveals that the latter is not a lesser included offense of the former because it is theoretically possible for a person to commit the crime of grand larceny in the second degree without intending to aid anyone else in the commission of a felony.

Published on: March 5, 2013

Defendant Claims Drugs Weren’t His

by Stephen Bilkis

A New York Criminal Lawyer said the defendant is appealing two orders that were made by the County Circuit Court. The first order that is being appealed denied his motion for post-conviction relief. The second order revoked his probation and imposed a prison sentence.

The defendant raises three main points on appeal. First, the court erred in denying his motion for relief because he was on probation and was not a prisoner in custody under the sentence when he made the motion. Second, the evidence was not sufficient in the case to support the fact that he had constructive possession of the legal illicit drugs. Finally, he argues that the court erred in his sentencing by not following sentencing guidelines.

Case Background

Published on: March 3, 2013

Juvenile is Charged with Cocaine and Marijuana Possession

by Stephen Bilkis

A juvenile is appealing adjudications made against him that found him guilty of possession of cocaine and marijuana. A New York Criminal Lawyer said he states that the trial court erred when they denied his motion for judgment of acquittal when the state had failed to present substantial evidence to prove constructive possession of the contraband.

Adjudicatory Hearing

During the adjudicatory hearing there was testimony that revealed that the defendant along with a friend asked another person for a ride to a woman’s house to pick up some items. The defendant rode in the back of the individual’s truck. The defendant and his friend got out of the truck at the house. The young men did not know that the house was under surveillance.

Published on: March 2, 2013

Defendant Found With Stolen Prescription Pad

by Stephen Bilkis

The Facts of the Case:

On 9 October 1980, at approximately 11:30 A.M., the defendant was arrested on East 40th Street in Manhattan, in possession of a blank prescription pad bearing the name of a certain doctor, a hypodermic syringe, twelve tablets of Triavil, and one bottle of Procaine. Thereafter, a New York Criminal Lawyer said the arresting officer, a Police Officer of the 9th Precinct, telephoned the doctor concerned at his Bronx office, inquiring whether the doctor had been burglarized. The doctor informed the officer that he was not aware of any burglary at his Manhattan or Bronx office, but that the man arrested was not authorized to take, use, or possess the property. Thus, the officer charged the defendant with Criminal Possession of a Controlled Substance in the Seventh Degree, Criminally Possessing a Hypodermic Needle, and Criminal Possession of Stolen Property in the Third Degree. Defendant was given a Desk Appearance Ticket, returnable on 24 October 1980. A misdemeanor complaint containing these charges was filed with the court.

On the same day, at about 3:00 P.M., when the aforesaid doctor arrived at his Manhattan office, he discovered that it had indeed been burglarized. The doctor reported the incident and officers from the 17th Precinct Burglary Unit responded. On this call, one of the Police Officers lifted a latent fingerprint from a cigarette package apparently left by the burglar. The doctor informed the Burglary Unit officers of the earlier telephone call he had received at his Bronx office, but was unable to recall the name, shield or command of the earlier caller. All attempts of the 17th Precinct Burglary Unit to ascertain the identification of that first caller proved unsuccessful.

Published on: March 1, 2013

Court Discusses Charge of Criminal Facilitiation

by Stephen Bilkis

A man was indicted on charges of four counts of grand larceny in the second degree. He was arraigned and he was tried. A New York Criminal Lawyer said that after the presentation of the evidence for the prosecution, the counsel for the accused asked the court that instead of the four counts of grand larceny, the court consider instead charging the accused of four counts of criminal facilitation in the fourth degree. The trial court found that criminal facilitation in the fourth degree was a lesser included offense of Grand Larceny.

The trial court charged the man instead of four counts of criminal facilitation. The jury convicted him of the same charges and he was sentenced. The accused filed a motion to set aside the verdict of guilt on the ground that the lesser criminal offense of criminal facilitation is not a lesser included offense of grand larceny.

It was the contention of the accused that since the trial court did not have jurisdiction over the crime of criminal facilitation, it cannot have the power to charge the accused of that crime. However, the Supreme Court or Queens County found that since the accused himself moved that he be charged with the lesser included offense of criminal facilitation, he has waived his right to question the charge.

Published on: March 1, 2013

Defendant Found Breaking into Vehicle with Screwdriver

by Stephen Bilkis

A man, the herein defendant, was observed by a police officer breaking into a motor vehicle using a screwdriver. He was then arrested and indicted. A New York Criminal Lawyer said the indictment originally charged him with, inter alia, attempted grand larceny in the second degree based on an allegation that he attempted to steal property, an automobile, with a value of more than $1,500. However, this charge was incorrect, inasmuch as the attempted grand larceny in the second degree, pursuant to Penal Law, requires an allegation that the property exceeded $50,000 in value. Thus, shortly before trial commenced, the prosecutor moved, without any objection by defense counsel, to amend the indictment to charge attempted grand larceny in the third degree on the basis that the defendant attempted to steal property valued in excess of $3,000. The proposed amendment was legally correct and conformed to the evidence and the instructions presented to the Grand Jury. However, although the court indicated that it would grant the motion, only the accusatory portion of the count was amended from attempted grand larceny in the second degree to attempted grand larceny in the third degree; the factual portion alleging that the value of the subject property exceeded $ 1,500 remained unchanged, and therefore, the count was still incorrect. Thereafter, on 8 August 1995, the Supreme Court of Queens County rendered judgment convicting him of attempted grand larceny in the third degree, criminal mischief in the third degree, and possession of burglar’s tools, upon a jury verdict, and imposing sentence.

Consequently, the defendant files an appeal from the said decision.

The Ruling of the Court:

Published on: February 28, 2013

Court Reverses Grand Larceny Indictment

by Stephen Bilkis

In this proceeding, an intermediate order denying a motion to dismiss an indictment will have a review from the Supreme Court.

A New York Criminal Lawyer said it appears from evidence presented that a bank, a trust company and another corporation executed a statement of trust receipt financing. At the grand jury trial, the three officers of the bank were called as witnesses. The bank paid the automobile company the total sum of $21,430.59 for eight automobiles. An employee of the bank checked the floor plan of the corporation and found out that four from eight of the cars were missing. Another check was made five days later and the remaining four cars were also missing from the floor. Consequently, a letter was delivered to the corporation by the bank in which they demand payment of all amounts due under trust receipts or immediate possession of all new and used cars on which the bank held trust receipts. A similar notice was served and in the interval checks had been received by the bank drawn by the corporate dealer in payment of the amounts due on two of the cars. The checks were not paid because of insufficient funds. The bank received neither the automobiles nor the moneys due.

It was upon the evidence that an indictment was returned accusing the president of the corporation, individually, of the crime of grand larceny in the first degree. The president of the corporation, which was the trustee, secreted, withheld and appropriated to his own use, and that of a person other than the true owner of the automobiles.