Sex Crimes

Published on: January 3, 2013

New York law provides that the murders must have been committed by the person engaged in the commission of or an attempt to commit a felony

by Stephen Bilkis

A man who owned a bar saw two of his customers having an argument while inside the bar. He went over to them and told them to take their argument outside. The two men left the bar and stayed on the sidewalk just outside the bar and the argument escalated into a very heated argument. One man pushed the other man down. A New York Criminal Lawyer said the man who pushed the other drew a gun from his backside and fired into the crown inside the bar which by then was rubber-necking the argument outside. A patron inside the bar got hit when the ma outside fired into the bar. That man lay seriously wounded on the floor of the Bar.

Unnoticed by the man outside the bar, a police officer on beat patrol heard the commotion and the shots fired. On the other side of the street, as the gunman fired into the bar, the police officer engaged the gunman in a gunfight. A few seconds later, a car pulled up near the gunman and the gunman got inside the car. The police officer gave chase while still firing upon the car.

In the meantime, when the bar keeper and owner of the bar heard that shots were fired by the gunman outside the bar, he went behind the bar and took out his shotgun. When he heard the screeching of the tires on the street, he came out of the bar and stood next to the police officer. He fired his shotgun at the car.

Published on: January 2, 2013

Court Discusses Conspiracy to Sell Drugs Charges

by Stephen Bilkis

This involves a case where the court ruled that the indictment against the defendant be reinstated.

During 1981 police officers conducted a large-scale investigation into the distribution of narcotics in New York, Queens and Bronx counties. A New York Criminal Lawyer said the investigation, which included a number of drug purchases by an undercover officer and involved the extensive use of electronic eavesdropping and surveillance, led to seven indictments charging the 12 subjects of the investigation, among them defendant, with conspiracies to sell narcotics, and with the sale and possession of heroin and cocaine. The charges against defendant were based on his alleged participation in heroin sales to the undercover officer on June 26, August 19, and September 11, 1981, and an attempted heroin sale on September 24, 1981. As a result defendant were charged in one of the indictments with one count of conspiracy in the second degree for their activities from May 28, 1981 to September 22, 1981. They were also charged with two counts of criminal sale of a controlled substance (drug possession) in the second degree and four counts of criminal possession of a controlled substance in the third degree for the August 19 and September 11 sales.

Trial Term dismissed the indictment against defendant, finding that that evidence was insufficient as to him to make out a prima facie case for either the sales or the conspiracy.

Published on: January 1, 2013

Confidential Informants Can Establish Probable Cause

by Stephen Bilkis

The April 25, 1975 affidavit of the State Police Investigator in support of the application for the warrant to search the house and automobile of the defendants contains five distinct elements which in some way indicate that defendants were keeping illicit drugs in or about their house. A New York Criminal Lawyer said these elements are of two sorts: communications from confidential informants and observations by named police officers. The informant data can be summarized as follows:

Informant # 1 “who has provided information which led to the arrest and conviction of two subjects for Murder, the arrest of one subject and the seizure of a quantity of controlled substances (drug possession) advised me approximately six months ago that a guy named M, living on East Lane, Burden Lake * * * with his girlfriend, C, was selling and packaging heroin at his residence on East Lane.”

Informant # 2 told me that “he overheard a conversation between a subject known to him, who let him hear what was being said and CN. In the conversation, CN discusses a quantity of heroin which was stolen from her residence on Burden Lake. He also overheard MS discuss the loss of 2 grams worth $200.00 apiece.”

Published on: December 31, 2012

Defendant Contends Right to Fair Trial Violated

by Stephen Bilkis

An accused man was questioned at length by his attorney to establish that he no longer used heroin and was involved in a methadone program. A New York Criminal Lawyer said his direct testimony was interlaced with differing references to his having been off heroin for at least one month, 6 weeks and two months, the clear implication being that he had no need for heroin possession or intent to distribute and sell it. He testified that he was en route from his home to his methadone clinic and, in doing so, took a most circuitous route, passing along 112th Street, which he knew was a shooting gallery. His attorney again presented the issue of his route by asking several questions as to the indirect route taken, which was never satisfactorily explained except that the accused man stated he sought to avoid encountering members of a motorcycle club whose location he never defined in relation to the path he took or the one he avoided.

A New York Criminal Lawyer said on cross-examination of the accused man, the prosecutor explored the very areas which had been inquired into on direct and, for the most part, the extent of the cross-examination resulted from the vague, imprecise and inconsistent responses by the accused man. Thus, when questioned as to whether he had in fact stopped using heroin before joining the methadone program, he responded that he was trying to stop then. It was followed with the response that he wasn’t using it at that time. While, on direct examination, he claimed to have been off heroin for varying periods of time, on cross-examination he admitted he was not totally straight at the time of his arrest but was working on it. Although the dissent finds fault in the questions pertaining to the methadone program, it was the accused man who first injected the issue when he endeavored to show that he was off heroin and, accordingly, had no need to shoot up. Under the circumstances, inasmuch as the issues were explored extensively by the accused man on his direct examination, it would be unfair and unbalanced to preclude the prosecution from legitimate cross-examination. Contrary to the view expressed by the dissent, Mental Hygiene Law was intended to apply as a shield, not as a sword and, based on record, does not operate to preclude questions on the very subject introduced by the accused.

On this record, the court finds that there was no denial of the accused man’s right to a fair trial. In view of the extent of the accused man’s direct examination, it would be palpably unfair and unreasonable to limit the prosecution on the very significant issues raised to establish the defense that defendant was off the habit. The accused man opened the door by admitting that although he had been addicted to heroin since he was 19 years of age and had used drugs for twenty-years but he discontinued such use since he attended the methadone program months prior to his arrest. It is obvious that his defense was keyed to the fact that he had no need to deal in or get involved in a case of heroin possession since the financial demands of the habit had been eliminated by his being a part of the methadone program and that his being by coincidence on 112th Street, the shooting gallery, was to avoid some unsavory characters whose location he was unable to pinpoint. Moreover, a New York Drug Crime Lawyer said the proof of guilt was overwhelming, the accused man, having been found with heroin possession of 24 glassine envelopes after being observed for a period of time by an officer who had monitored his actions by use of power binoculars from a second story window. Under the circumstances, considering all of the evidence, the unquestioned overwhelming proof of guilt and the absence of any objection to preserve the issue for review on appeal, at most there was harmless error.

Published on: December 31, 2012

Probable Cause Questioned in Drug Crime

by Stephen Bilkis

A police officer was on patrol in her cruiser. She noticed a pick-up truck which was swerving and crossing over the solid yellow line dividing the two lanes onto the opposite lane. Then the pick-up truck swerved sharply back to its lane. The police officer then put on her siren and emergency lights and pulled the pick-up truck over.

A New York Criminal Lawyer said when the police officer pulled the pick-up truck over, she went to talk to the driver. She noticed that the driver’s eyes were glassy and red. She noted the smell of alcohol on his breath and the smell of alcohol coming from the interior of the truck. The man’s speech was slurred and he walked unsteadily. She conducted field sobriety test by asking the driver of the pick-up truck to stand on one leg. He dropped his other leg and could not stand on one leg. The officer asked the driver to also walk a straight line heel-to-toe and he could not do that, either.

The man admitted to the police officer that he’d drunk alcohol earlier that evening but he also said that he had already eaten and so he didn’t think that he was that drunk and was on his way home to sleep it off anyway. He also volunteered to the police officer that he had taken suboxone, a step-down drug from heroin addiction.

Published on: December 30, 2012

Defendant Claims Due Process Rights Violated in Drug Charge

by Stephen Bilkis

The police in Brooklyn suspected that a drug repacking business was carried out in an apartment building by the members of one family. They wrote down all the facts they have so far gathered about the heroin-repacking business in an affidavit and they applied for a search warrant. The judge granted them a search warrant and twelve officers formed a raiding party that would serve the search warrant.

When the police arrived at the ground floor of the building, a man was coming out. A New York Criminal Lawyer said when the police announced their presence, the man slammed the front door of the apartment building in the policemen’s faces. He then climbed the stairs to the second floor apartment screaming.

The police used a battering ram to enter the building and they used the same battering ram to gain access to the apartment since the apartment door had been locked and no one was answering the door.

Published on: December 29, 2012

Defendant Charged with Manslaughter in Heroin Case

by Stephen Bilkis

The defendant, is twenty-two years of age, an admitted heroin user and, in all probability, an addict. At the time of this occurrence, he was living in an apartment over a bar located on Jericho Turnpike, Smithtown, New York. On September 9, 1971, at approximately 8:00 p.m., the victim was a young girl of nineteen years of age, visited him at his apartment. The defendant observed that she was under the influence of drugs. She was high on ‘downs’, and, as a matter of fact, ‘she could not walk or talk straight’. They talked for a while and then she fell asleep on the bed. He then left the room and went out at about 9:00 to 9:30 p.m. to purchase some pizza in a restaurant.

A New York Criminal Lawyer said when he returned, he found the young girl trying to inject heroin into her arm with a hypodermic syringe and needle. She was apparently having difficulty, and he then proceeded to assist her, and actually injected the heroin (heroin possession) into her arm. They then had some food and she went back to sleep. She was lying on the bed in a semiconscious condition. Shortly thereafter she started to regurgitate, and he placed her on the floor. He watched television for a while and then went to sleep.

Shortly thereafter his roommate requested of the defendant that he accompany the roommate’s girlfriend home. He did so and returned between 2:00 and 3:00 a.m. and found the victim still on the floor sleeping. Defendant then went to bed and shortly thereafter he heard the victim make a ‘gurgling noise’. He then applied mouth to mouth resuscitation and was unable to revive her.

Published on: December 28, 2012

Court Decides Whether Prior DUI Convictions are Allowed as Evidence

by Stephen Bilkis

The Facts of the Case:

On 11 October 1988, the petitioner was charged in the circuit court with three traffic-related offenses. One of the charges was for DUI (DWI) in violation of the Florida Statutes, to wit: that any person who is convicted of a fourth or subsequent DUI violation is guilty of a felony of the third degree. However, the information filed charging the petitioner made no mention of any specific prior DUI convictions, nor did the state before trial provide the petitioner any details of the alleged prior convictions. At arraignment, petitioner moved to dismiss or to transfer the matter to the county court, contending that because the information did not inform him of what specific prior offenses he allegedly committed, the information did not adequately charge the felony, and therefore the circuit court had no jurisdiction. The circuit court denied the motion. Consequently, the jury found petitioner guilty of DUI. A New York Criminal Lawyer said after denying the petitioner’s renewed motion to dismiss, the court immediately adjudicated petitioner guilty of third-degree felony DUI and sentenced him to four and one-half years’ imprisonment. Thereafter, the district court reversed on the ground that the felony prosecution in circuit court was improper because the information merely charged petitioner, in effect, with three misdemeanors. The district court expressed conflict with a prior court ruling which held that the state need not allege the prior DUI convictions in the charging document because of possible prejudice to the accused in the event the prior convictions were brought to the jury’s attention.

The Issue of the Case:

Published on: December 27, 2012

Court Discusses Public Policy Regard Drug Treatment Programs

by Stephen Bilkis

Plaintiff brought this action to recover damages for injuries he claims to have suffered as a result of being knocked down as he attempted to board a bus operated by the defendant which was traveling on Hylan Boulevard in Staten Island. At the time of jury selection, the plaintiff moved in limine to preclude the defendant from offering evidence of or in any way calling the jury’s attention to the facts of the plaintiff’s incontestable past use of heroin ( and his current participation in a methadone treatment program.

Following jury selection and prior to opening, the court granted the balance of the plaintiff’s motion and precluded the defendant from mentioning or offering any evidence of the plaintiffs past use of heroin (heroin possession). Given that there is a paucity of reported case law regarding the admissibility of such evidence in civil proceedings, the court files the decision to memorialize its opinion.

First, it is important to recognize what is not presented on the motion. A New York Criminal Lawyer said the motion does not question whether a plaintiff’s use of heroin is admissible in the damages phase of a civil trial where the jury is assessing a variety of health and life issues relating to the plaintiff, such as life expectancy. In that context, with an appropriate foundation, testimony regarding the plaintiffs heroin use would surely be admissible. Nor is it about whether the plaintiff was under the influence of heroin at the time of the accident so that his powers of perception or recollection might actually have been impaired by his heroin habit; nor whether the plaintiff was under the influence of heroin at the time of his testimony. The use of heroin by the plaintiff in those circumstances would be admissible even in the liability phase to impeach his credibility as a witness. Indeed, in all of those situations, proof of heroin use and addiction even by extrinsic evidence would be proper. (See, e.g., People v Freeland, 36 NY2d 518, 525 [1975].) The lone issue decided by this court on the branch of the motion reserved to it was whether the plaintiff’s past use of heroin was admissible as an act of moral turpitude offered only to attack his credibility as a witness.

Published on: December 25, 2012

Defendants Claim Court Erred in Sentencing

by Stephen Bilkis

The Facts of the Case:

A building containing offices and retail establishments was broken into and burglarized. Moments after the silent alarm system went off, the appellants, along with a third person, were found inside including various tools that were apparently used in the burglary. Consequently, appellants were charged and convicted of breaking and entering with intent to commit a felony, viz: grand larceny, petit larceny and possession of burglary tools. They were each sentenced to fifteen years for the breaking and entering conviction, 60 days in the county jail for the petit larceny, and five years for the possession of burglary tools, the latter to run consecutive to the former concurrent sentences.

A New York Criminal Lawyer said the appellants now ask the court for a reversal of their convictions and sentences and argues that the evidence presented was insufficient to support the conviction of breaking and entering with intent to commit grand larceny; that the trial court erred in disallowing the testimony of an alleged material witness; and that the trial court erred in imposing three separate sentences for the three offenses inasmuch as the petit larceny and possession of burglary tools were but facets or phases of the breaking and entering with intent to commit grand larceny.