New York Criminal Lawyer Blog

Published on: January 28, 2013

Defendant Contends Insufficient Evidence to Uphold Marjuana Conviction

by Stephen Bilkis

The defendant is appealing a jury conviction that charged him with the crime of carrying a firearm during and in relation to a drug trafficking crime and for possession of a firearm and ammunition by a convicted felon.

Case Background

In July, law officers executed a search warrant on the defendant’s residence. A New York Criminal Lawyer said the officers testified that the defendant arrived at his home around 9:45 p.m. and got out of his vehicle and went into the house. Not long afterwards another car pulled up and the defendant came out of the house to talk to the driver of the vehicle. After the driver left the officers executed the search warrant of the property.

Published on: January 27, 2013

Drug Crime Defendants Claim There is Insufficient Evidence Against Them

by Stephen Bilkis

The DEA along with the local Sherriff’s Department started a joint investigation of what was believed to be to be a cocaine trafficking organization. A New York Criminal Lawyer said the investigation focused on a local restaurant and its owner. The investigators believed that the owner of the restaurant was the leader of the organization that purchased powder cocaine and crack as well as marijuana (marijuana possession). These suspicions were confirmed when confidential informants made several drug purchases at the restaurant. The owner refused to sell to one of the informants, but his son sold to the informant and the owner watched the transaction take place.

The task force began to accumulate evidence against the owner of the restaurant as well as many of his customers over the years. Several individuals were arrested in the central part of the state for possession of numerous controlled substances and identified the restaurant as where they received the drugs.

After a while participants in the drug ring started to turn on the organization. A Brooklyn Criminal Lawyer said the first individual told officials that crack cocaine was dealt at the restaurant and the main person was the owner. He told officers that he along with another man, and the girlfriend of the owner worked directly for the restaurant owner. Other people came forward and confirmed this story.

Published on: January 26, 2013

Defendant Accused of Aiding and Abetting Perpetrator in Robbery

by Stephen Bilkis

The accused man along with a co-accused was convicted of robbery in the first degree. He and his co-accused had been charged with aiding and abetting the actual perpetrator; and the sole evidence linking the accused to the robbery was his own admissions. The evidence was insufficient to establish the accused man’s guilt of robbery as a principal.

The accused man’s admissions established only that he had given a gun to his co-accused who, in the accused man’s presence, then turned it over to their actual perpetrator man, whom they knew was going to use it in a robbery; and that after the robbery, and an ensuing homicide in which a police officer was killed, the accused cut his actual perpetrator’s hair in an effort to help him evade capture. It is indisputable that the accused was never present during the actual commission of the robbery and it is not claimed that he ever shared in the robbery proceeds.

Clearly, the accused did intentionally render assistance to the actual perpetrator. However, to be criminally liable for the robbery itself, he must also be shown to have shared the same specific intent or mental culpability as the actual perpetrator, and this was not done. The transfer of the weapon to the actual perpetrator, without more, is at best equivocal; and the subsequent cutting of the actual perpetrator’s hair is of little or no probative value, since it was the intervening killing of a police officer and not the robbery which obviously gave rise to the extensive manhunt. In other words, while the accused may be guilty of other crimes, such as criminal facilitation and hindering prosecution, the circumstantial evidence was not at all inconsistent with his innocence of the crime of robbery itself.

Published on: January 26, 2013

Defendants Bring Motion to Supress Evidence in Sex Crimes Case

by Stephen Bilkis

This is a case for the sex crime of obscenity where the defendants filed a motion to suppress certain evidence presented during the trial. In the motion, they raised as a contention that the prosecution was stopped from introducing evidence for acts of sodomy since there was a previous acquittal of the defendants for the offense of consensual sodomy.

A New York Sex Crimes Lawyer said the surrounding facts of the case were that the appellants had been earlier charged of consensual sodomy and promotion of obscenity for performing in a show participated by the defendants. After trial, the parties charged were acquitted for the sex crime of consensual sodomy but a hung jury resulted for the charge of promoting obscenity.

A retrial was processed for the felony of promoting obscenity and, during the trial, the prosecution showed evidence that included testimony in relation to the alleged acts of sodomy. Based on the ground that the there was acquittal granted to the appellants for the consensual sodomy, such testimony relating thereto should not be presented as evidence since it would constitute double jeopardy and constructive estoppel.

Published on: January 26, 2013

Court Discusses Imposing Tax on Possession of Illegal Drugs

by Stephen Bilkis

The question before the court in this case is whether imposing a tax on the possession of illegal drugs after the state has imposed a criminal penalty for the same conduct is in violation of the constitutional prohibition of successive punishments for the same crime.

Law Review

Montana’s Dangerous Drug Tax Act went into effect on the first of October, 1987. The Act imposes a tax on both the possession and the storage of illegal drugs. A New York Drug Crime Lawyer said the Act specifically states that the tax will be collected only after the state and federal fines or forfeitures have been satisfied. The imposed tax is either 10% of the market value of the drugs or specified amount depending on the drug. For example, the charge for marijuana is $100 per ounce and the charge for hashish is $250 per ounce. The charge is whatever is greater.

Published on: January 26, 2013

Court Weights Constitutionality of Sentencing for a Felony in the Third Degree

by Stephen Bilkis

The Florida state filed an appeal placing in issue the constitutionality of the provisions of law pertaining to the inclusion of prior convictions in the charging information. This was due to the ruling of the circuit court, wherein the appellees who were charged and found guilty of petit larceny and they have already been previously convicted of such crime twice. A New York Criminal Lawyer said the court granted the motion to dismiss filed by the accused on the ground that such charges were unconstitutional which deprived the defendants’ due process and equal protection of the law. The court granted the motion, thus, the appeal was made by the state.

The issue before the court is the constitutionality of the provision of law where “upon the third or subsequent conviction for petit larceny, the offender shall be guilty of a felony in the third degree.” A New York Criminal Lawyer said this was a distinct substantive offense that can be distinguished from the statute on being considered a criminal habitual offender. Both statutory provisions provide harsher punishments for a repeated offender. As habitual offender, the previous offense shall serve as the basis of an increased penalty while the other law makes the prior offense part of the elements of the present offense charged against the felon, which must be specifically alleged and proved during trial. In the latter case, the jury must provide judgment as to the guilt or innocence of the defendant based on the existence of facts related to prior conviction or convictions and return a verdict as to both.

The court pointed out several cases to sustain the action of the trial judge in submitting before the jury the judgment as to the verdict of the present offense charged and as to the historical fact of prior conviction. Furthermore, a New York Drug Possession Lawyer said the jury is under obligation to come up with specific findings of the facts in said former convictions.

Published on: January 26, 2013

Court Weighs Plaintiffs Injuries Against Applicable Insurance Law

by Stephen Bilkis

A motion by the accused woman for an order awarding her summary judgment dismissing the claims of the complainant that she did not sustain a serious injury within the meaning of Insurance Law is granted.

A cross-motion by the complainant husband for an order awarding him summary judgment dismissing the accused woman’s counterclaim as defendant was solely liable for the happening of the accident is also granted.

A New York Criminal Lawyer said that viewing the evidence most favorably to the accused, it is nevertheless uncontroverted that the impact between the vehicle driven by the complainant husband and the vehicle driven by the accused woman took place while the complainant husband was stopped and waiting to cross over the double yellow lines to turn into his own driveway. Moreover, the accused woman was concededly drinking prior to the accident and was arrested for drunk driving following the accident. She also pled guilty to DWI and was traveling at approximately 20 miles per hour with her foot on the gas at the time of impact. At best, the accused struck the complainant’s vehicle without crossing over the double yellow lines into the complainant’s lane and instead struck the complainant’s stopped vehicle while both vehicles were pretty much right on the line.

Published on: January 25, 2013

Plaintiff Contends Gross Negligence by Newspaper Reporter

by Stephen Bilkis

The case is about a libel suit filed by the Turkish national against the publisher, together with its managing director and other investigative reporters, for the republication into a book pertaining to several newspaper articles regarding worldwide narcotic trade covering several continents. A New York Drug Crime Lawyer said the plaintiff claimed that such articles were allegedly false and defamatory where he was named as a specialist drug criminal smuggler in his country. He further averred that the printed allegations against him were untrue, which caused damaged to his reputation as a legitimate businessman and he was gravely injured by the wrongful accusations written about him.

In 1973, a series of newspaper articles about the international drug crime of heroin possession and smuggling trade were published that merited public recognition and a prize from a recognized award-giving body. A New York Drug Possession Lawyer said the newspaper articles were then converted into a book through the efforts of the defendant publishing company.

The action filed against the newspaper company by the plaintiff was dismissed by the court because the cause of action had already prescribed. No appeal was made by the Turkish national. But the libel case filed by the plaintiff against the publishing firm was not dismissed since it was not barred by the statute of limitations.

Published on: January 25, 2013

Defendant Says Ineffective Counsel Resulted in Unjust Conviction

by Stephen Bilkis

An appeal was filed by the state for the denial of the court of its motion for summary judgment to dismiss the claim of the claimant who maintained an action for wrongful conviction. A New York Sex Crimes Lawyer said the court reviewed the records of the case and found insufficient evidence that would support the claimant’s allegation of unjust conviction for the charge of attempted rape in the first degree. Although it was noted by the court that the counsel of the accused had difficulty communicating with him, such concern did not result to his lawyer’s unwillingness and inability to represent and forward his interest during the trial. The ground of ineffective assistance of an attorney is not proper for a claim of unjust conviction.

Based on the law applied, the grant of the claim for unjust conviction against the state, the claimant must establish that the “the judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor.” The indictment of the respondent must prove before the court of claims that there was coercion or fraud used by the court to obtain hiss plea of guilty to the crime charged against him. A New York Sex Crimes Lawyer said there must be clear showing in the statement of facts that would establish his innocence or the conviction was caused by his own conduct alone, otherwise, his claim must be dismissed.

The claimant presented a document evidencing that he entered a plea of guilty for a lower offense of attempted rape instead of charging him with graver sex crimes like sodomy and sexual abuse. But, later on, the felon withdraw his plea of guilty on account that he made it involuntarily and because of the colossal pressure and coercion placed on him by his legal aid counsel. The court found the allegations of the claimant to be distorted and self-serving as revealed by the records of the case.

Published on: January 25, 2013

Petit larceny

by Stephen Bilkis

In a court case, a man was charged with two counts of grand larceny on an allege breaking and entering with intent to commit a felony. Consequently, he was found guilty of the first count and also guilty of petit larceny as a lesser offense of the second count.

A New York Criminal Lawyer said the man contends that the evidence was insufficient to permit the jury to conclude that he had the necessary intent to commit grand larceny when he broke and entered the dwelling. The evidence established that the man was apprehended shortly after he had left the premises, at which time he had in his possession of the color television set, a camera, and a portable radio, all of which had been stolen from the dwelling. Yet, the state offered no evidence to establish that the property had a value of $100.00 or more at the time of the stealing. Beyond being apprehended with the stolen property, there was no other evidence or circumstances bearing on the question of the man’s intent. In such cases it has been said that the best evidence of his intent is his act of stealing.

The court concluded on the basis of previous case and stated that the evidence was insufficient to sustain the conviction of the crime of breaking and entering with intent to commit a felony. The court further asserts that the decision of guilt should be entered as to the lesser included crime.