New York

Published on: February 22, 2013

Defendant Claims the People Failed to Establish Burden of Proof in Larceny Case

by Stephen Bilkis

This is an appeal by defendant from a judgment of the County Court, Suffolk County, rendered April 21, 1976, convicting him of grand larceny in the second degree (13 counts) and grand larceny in the third degree (2 counts), upon a jury verdict, and sentencing him to indeterminate terms of imprisonment with a maximum of seven years on each of the counts of grand larceny in the second degree, and to indeterminate terms of imprisonment with a maximum of four years on each count of grand larceny in the third degree, the sentences on all counts to run consecutively.

A New York Criminal Lawyer said that, defendant’s convictions are based upon the taking of money from various individuals from March, 1972 to February, 1974 in connection with an investment scheme, commonly referred to as a “Pyramid Scheme”. The prosecution proceeded under a theory of larceny by false promise, pursuant to section 155.05 of the Penal Law. A Suffolk Grand Larceny Lawyer said that, defendant’s primary contention on appeal is that the People failed to sustain their burden of proving this particular type of larceny, in that the representations made by him and his agents to the witnesses, as to how their money would be invested, were in fact carried out. Defendant contends that he at all times intended to fulfill his promises as to the investment plan and was merely a victim of some “bad investments”.

The issue in this case is whether the people failed to sustain their burden of proving the particular type of grand larceny.

Published on: February 21, 2013

Court Decides Domestic Violence Charges

by Stephen Bilkis

First Case:

On or about 8 July 2008, a Family Court in Bronx County found that respondent mother permanently neglected her children. The judgment was appealed and the court now affirms said order, without costs.

Here, a New York Criminal Lawyer said the court finds that the neglect findings are supported by clear and convincing evidence that petitioner made diligent efforts to assist a meaningful relationship between respondent mother and her children and that, despite these efforts, respondent mother failed to plan for the children’s future. Petitioner’s efforts included providing numerous referrals to programs tailored to respondent mother’s changing needs and consistently following up with respondent mother on such critical goals as completing a mental health evaluation and domestic violence counseling. Petitioner’s focus on the issues of health and domestic violence was the most appropriate course of action. However, respondent mother still refused to complete these critical components of the service plan. The respondent mother’s her argument that petitioner failed to assist her with such other service plan goals as obtaining suitable housing and a source of income is belied by the records of the case. Evidence was presented that petitioner indeed made referrals in these areas and monitored respondent mother’s changing housing and employment circumstances. It was respondent mother’s own lack of meaningful cooperation with petitioner that hindered her accomplishment of these goals.

Published on: February 21, 2013

Defendant Brings Omnibus Motion to Suppress Identification Testimony

by Stephen Bilkis

This is an appeal by the defendant from a judgment of the County Court, Dutchess County, rendered February 13, 2008, convicting him of grand larceny in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

A New York Criminal Lawyer said that, the defendant’s conviction arises from two incidents in which he allegedly stole merchandise from a Home Depot store. The defendant was charged with one count of grand larceny in the fourth degree, based, inter alia, on his having taken property with a value of over $1,000 in an “ongoing course of conduct and common plan and scheme.” A Dutchess Grand Larceny Lawyer said that, after a pretrial hearing, the County Court denied that branch of the defendant’s omnibus motion which was to suppress identification testimony. At the hearing, a New York Criminal Lawyer said that the County Court also ruled that if the defendant chose to testify at trial, the prosecutor could impeach him with evidence of the fact of one felony and seven misdemeanor convictions, but could not elicit the specific charges of which the defendant had been convicted, nor the underlying facts leading to the prior convictions.

At trial, the defendant’s nephew testified that he accompanied the defendant to the store on two dates. A New York Drug Possession Lawyer said the nephew testified that on the first date, he and the defendant placed a television on a cart. While the defendant spoke to a store employee his nephew wheeled the cart out of the store, and then the defendant followed. A store cashier testified that she witnessed this occurrence, and she identified the defendant at trial. The cashier also testified that after the defendant left the store, she looked up a price of televisions on a display, since she “recognized the front of the box” of those televisions. The cashier indicated that the sale price of the televisions on the display was $1,999.97. The cashier did not know the model number or name of the television that the defendant allegedly took. The People introduced no further evidence as to the specific type of television that was allegedly taken, nor as to the price of that television. The defendant’s nephew testified that on the second occasion, he and the defendant placed various items of merchandise in a shopping cart, wheeled that cart to a store exit, and placed those items beneath a gap in a fence leading to the parking area. A store “loss prevention investigator” testified to having witnessed those events, and identified the defendant at trial.

Published on: February 21, 2013

Court Determines Defendant Violated Probation

by Stephen Bilkis

The defendant is appealing and order that revoked his probation and the sentence that he received after the trial court found that he had violated the terms and conditions of his parole by possessing marijuana. A New York Sex Crimes Lawyer said he states that the evidence used was insufficient to support the revocation of his probation.

Case Background

The state filed an affidavit stating that the defendant was in violation of his probation as he had failed to remain at liberty without violating any law by committing a criminal offense of possession of marijuana.

Published on: February 19, 2013

Defendant Contends Confession was Coerced

by Stephen Bilkis

In summary, the accused was arrested for possession of a weapon and when brought to the station he asked the police officer that he would cooperate in bringing additional guns through his wife. A few hours later, he was already suffering from heroin withdrawal that prevented him to being brought to the criminal booking office. A New York Criminal Lawyer said during the course of his detention and while feeling sick due to his withdrawal from drugs, the other investigators questioned and interrogated him for the gun crime, specifically, a shooting incident. The result of which, is that he was asked to sign a waiver and was then charged and subsequently arraigned for the alleged crime of shooting that he committed.

A few days later, the offender was examined by a doctor where he was diagnosed of having heroin withdrawal. An expert in forensic psychiatry testified that the defendant suffered from opioid withdrawal where symptoms usually occur within eight to twelve hours from the last drug intake. The doctor further averred that a person having opioid withdrawal is not in his normal behavior and usually suffer severe physical conditions.

The defendant was charged with the crime for shooting the victim inside his apartment at Brooklyn. The appellant moved to suppress evidence acquired due to his unlawful detention for the charges of criminal possession of weapons and seek to repress his admissions he gave through coercive measures conducted by the police towards him during such detention.

Published on: February 18, 2013

Police Officer Hurt in Domestic Violence Call

by Stephen Bilkis

First Case:

Sometime in March 1998, petitioner who is a police officer since 1989 was suffering from depression and suicidal ideation and was admitted to a psychiatric hospital. A New York Criminal Lawyer said the petitioner was out of work for several months after which time she returned to light-duty work that did not involve her carrying a weapon. She remained on light duty until September 2001, when she stopped working altogether. In 2003, she applied for performance of duty disability retirement benefits, claiming to be permanently disabled due to posttraumatic stress disorder and depression. The application was initially denied and petitioner requested a hearing and redetermination. Following hearings, the Hearing Officer upheld the denial, finding, among other things, that petitioner had failed to establish that she was incapacitated from the performance of duty as the result of a disability sustained in service. Respondent made supplemental findings of fact, but otherwise adopted the Hearing Officer’s findings. Thus, a CPLR Article 78 Proceeding ensued to review the determination of respondent which denied petitioner’s application for performance of duty disability retirement benefits.

The court finds that the denial was proper and affirms the respondent’s determination. Under the Retirement and Social Security Law, in order to be entitled to performance of duty disability retirement benefits, an applicant must establish that he or she is physically or mentally incapacitated for performance of duty as the natural and proximate result of a disability sustained in such service.

Published on: February 16, 2013

Defendant Contends Government Relying on Hearsay Evidence

by Stephen Bilkis

The appellant in this case was convicted for possession and use of a gun. This conviction was based on a statement from a witness that the defendant possessed an identical gun that he typically kept in his home in another state.

Case Background

The defendant was arrested in March of 1990. Agents from the Bureau of Alcohol Tobacco and Firearms had tracked him from his home in Missouri to Texas. The agents watched him for a few days and acquired evidence to identify him as the buyer of a large amount of drugs. After concluding that the defendant had completed the purchase and was going to leave Texas with the drugs the agents alerted the local police. The police pulled him over and found 30 pounds of marijuana (marijuana possession) in the trunk of the car and a pistol in a sock on the floorboard behind the driver’s seat.

Published on: February 11, 2013

Defendant Claims 6th Amendment Right to Impartial Jury was Violated

by Stephen Bilkis

The appellant was convicted on a charge of conspiracy to distribute marijuana and distribution of approximately 530 pounds of marijuana. A New York Criminal Lawyer said he is appealing this conviction on the ground that the trial court’s examination of prospective jurors was inadequate and that the venue for the distribution count was improper.

Case Background

The conspiracy and distribution convictions of the defendant come from his attempt to sell a large amount of marijuana to an undercover agent. The transaction between the defendant and the undercover cop was arranged by a co-conspirator. The undercover agent was posing as a buyer from Michigan and agreed to buy 500 pounds of marijuana at the price of $250 per pound.

Published on: February 10, 2013

Defendant Appeals Conviction for Trafficking Cocaine

by Stephen Bilkis

The defendant/appellant in this case is appealing convictions for trafficking in cocaine and marijuana possession.

Case Background

Evidence showed that the girlfriend of the defendant rented a car through her aunt. The defendant borrowed this car and was driving on the turnpike when he was pulled over by a state trooper for a traffic violation. A New York Criminal Lawyer said one of the friends of the defendant was a passenger in the car. The state trooper requested the rental agreement and the defendant removed it from the glove box.

Published on: February 9, 2013

Court Decides if Marijuana Possession is a Serious Drug Offense Under ACCA

by Stephen Bilkis

The government is appealing the sentence of only 55 months for the defendant for being a felon in the possession of a firearm. A New York Criminal Lawyer said the government challenges the determination from the Supreme Court that the defendant was not an armed career criminal. Furthermore, the government states that the prior convictions of the defendant for first degree possession of marijuana were serious drug offenses and should have been ruled as such by the court.

Court Discussion and Decision

The question before the court is whether or not the prior conviction of the defendant for marijuana possession in an amount that is more than for personal use is sufficient to be considered a serious drug offense as listed under the ACCA.