New York Criminal Lawyer Blog

Published on: August 6, 2012

Probable Cause Questioned in Drug Crime

by Stephen Bilkis

Drug offenses are governed by numerous laws of varying degrees. Each one is reliant on the laws of search and seizure at the federal and state level to ensure that the officers and prosecutors do not overstep their boundaries in a zealous attempt to make more cases. A New York Criminal Lawyer said if they do, then they jeopardize the trust that the citizens have placed in them. The laws of search and seizure are in place to protect all citizens from illegal intrusions into their homes and businesses. If the prosecutorial team violates that trust, then it is a threat to the freedom of all people, not just the defendant in the drug crime case.

On January 19, 1973, at around 7:30 at night, a narcotics officer was observing activity in a known high drug trafficking area from the roof top of an eighteen story building. He observed a man approach a suspected drug dealer and offer him money. The suspected dealer refused the money and the man produced a larger amount from his pocket. The dealer accepted that amount and left to enter a building. He came back a short time later and put his hand on top of the recipient’s hand in an awkward hand shake. The officer stated later in court that in his experience, that type of hand motion is used to conceal the passing of narcotics from one person to another.

The observing officer communicated with a uniformed chase officer on the roadway that he had observed the drug transaction. He described the defendant by his physical description and by his clothing. He told the chase vehicle that the defendant was walking down the roadway toward his location. He observed the recipient as he walked right up until his contact with the chase officer when the observing officer told the chase officer that it was the man right next to him.

Published on: August 4, 2012

Defendant Set Up in Sting Operation

by Stephen Bilkis

When police officers make an arrest, it is important that they do so in the proper jurisdiction. The case must then be presented to the Grand Jury if it is a felony. A New York Criminal Lawyer said hat Grand Jury must be in the correct venue to draw an indictment. If it is not, then the case is not legal. One such case was served as a motion from a defendant on June 5, 2005. The defendant claimed that the indictment against him needed to be dismissed because the crime had not occurred in New York County.

The police detective contends that over a period of several weeks, he had telephone conversations with a confidential informant. This informant provided him with information that the defendant and several of his friends had a plan to rob some drug dealers. He stated that the group planned to stockpile some weapons (possession of a weapon) and create a robbing gang. This gang would target drug dealers and rob them of their drugs and cash. The informant contacted the police department. The police detective told the informant to give this robbing gang bad information about a non-existent drug dealer who had 60 kilos of cocaine and a large amount of money. The gang began to make their plans. The detective told the informant that the address that he was to give to the gang was an address in the Bronx. The defendant and his accomplices were arrested and indicted. They maintained that none of the telephone conversations that were the crux of the case occurred in New York County. Because they did not occur in New York County, the state could not prosecute the crimes of conspiracy to commit a crime and the numerous other charges that the gang was indicted on.

The prosecutor makes the argument that the intended target was an address in the Bronx which was in New York county. The prosecutor contends that the intended target would make the case venue New York County. The Supreme Court disagreed. A Long Island Criminal Lawyer said they made several disparaging remarks directed at the prosecutor and at the detectives involved in this case. They contend that the detective did not ascertain the jurisdiction that he or the confidential informant were in at the time that the phone calls were made. Since the jurisdictional issues cannot be formulated based on the locations of each party to the calls, then the court is not able to establish venue for the hearings. They contend that the argument that would apply the jurisdictional issue to the proposed target location is not realistic. The court contends that the crime took place at the location in which one or both of the parties to the telephone conversation were located at the time of the conversation. If the jurisdiction cannot be determined, then the case is not able to continue.

Published on: August 3, 2012

Defendant Contends Search of Vehicle and Arrest Unlawful

by Stephen Bilkis

The Facts:

The seizure of evidence from the defendant was an offshoot of a joint investigation undertaken by the DEA and New York State law enforcement authorities. A New York DWI Lawyer said the purpose of the investigation was to identify the members of a drug dealing organization, its suppliers and customers, and to locate stash and distribution locations. The investigation began at least as early as 27 September 1990, when several eavesdropping warrants were issued permitting the authorities to gather information concerning narcotics trafficking being done by a large number of people including man-one and his brother, man-two.

Through the wiretaps, surveillance and a confidential informant, the agent in charge of the operation had established, by 17 January 1991, that the organization used an apartment at the Bronx to store and package heroin for sale; that another place at Walton Avenue was being used to store narcotics and narcotics packaging paraphernalia; and that another place in Wyatt Avenue was being used to discuss their narcotics business. Moreover, the agent was aware that the DEA’s wiretaps showed a pattern of conversations that are coded, cryptic and carefully worded. A New York DWI Lawyer said according to the agent, the intercepted conversations contain repeated references to iron and board and for clothes, which he believed to be references to narcotics packaging paraphernalia. Narcotics, as the agent averred, were discussed in terms of food, bottles, cases of beer, and clothes.

Published on: August 3, 2012

Court Determines if New Sentencing Statute Applies

by Stephen Bilkis

The Facts:

On 15 December 1981, defendant was convicted of several drug crimes (which includes marijuana possession, heroin possession, etc.), viz: Criminal Sale of a Controlled Substance in the First Degree, Conspiracy in the Second Degree and Criminal Use of Drug Paraphernalia in the Second Degree. Defendant was sentenced to various terms of imprisonment.

The Issue:

Published on: August 3, 2012

Court Questions if Search Warrants are Needed for Infractions

by Stephen Bilkis

The changes in the state of the economy have produced changes in living arrangements for many people. Most cities in the United States have legal codes that detail what type of structure a building is. If the structure is not zoned as a multiple family dwelling, it is illegal to use it as one. With the downturn of the economy, many larger homes in New York have been purchased by slum lords who illegally subdivide them into multiple family dwellings. A New York Sex Crimes Lawyer said when a code enforcement agent is notified that an illegal boarding house is in existence, they must investigate the claim. Some of the indicators that they look for that suggest that a house is being used as an illegal rooming house involve the existence of extra kitchens, plumbing, or bedrooms located in a basement. Sometimes a home will have a mother-in-law suite in the basement that is occupied by a close relative. That is not an illegal boarding arrangement even if the relative helps with the bills on the house. If the mother-in-law suite is occupied by a family who is paying rent to the homeowner and is not related to the homeowner, they are probably in violation of the city codes.

When two distinct families are residing in a house that is zoned as single family dwellings, the homeowner could be found to be in violation of the housing codes. Another red flag that may expose an illegal rooming house is if the code enforcement investigator observes evidence that there are separately keyed entrances, or key locked doors on individual rooms within the house. Individual locks indicate that separate privacy zones exist in the house. A New York Sex Crimes Lawyer said that these separate zones are the sleeping quarters of persons who are either distantly related, or not related at all to the home owner, it is possible that the homeowner is in violation of the housing codes.

Other evidence can also demonstrate that a house is being used as an illegal rooming house. One way that an illegal rooming house is exposed is often through the utility usages of the home. When more than the normal number of people are living in a single family dwelling, the utility usage becomes extreme. One of the first indicators of a large number of people in a single family house is an increase in garbage that is put out to be collected. More people make more trash. They also use more water and electricity. A spike in either of these utilities can indicate that a single family zoned home is being used as an illegal boarding house. Code enforcement agents may use search warrants, but they are rarely necessary in the course of their investigations. Some code enforcement agents in larger cities often use search warrants because it is the only way to see inside of the residence if the people living there refuse to allow them access. A Suffolk County Sex Crime Lawyer said when they do obtain search warrants, they are generally limited to warrants that are executed during the day, or other times when the intrusion is less invasive than execution of a warrant in the middle of night. The execution of a code enforcement warrant should be less of an intrusion into the private lives of the citizens of the jurisdiction than the execution of a criminal warrant. However, when law enforcement officers are involved, their expertise is often limited to criminal warrants and most have never served a code enforcement warrant in their careers.

Published on: August 2, 2012

Defense Argues Probable Cause Not Present

by Stephen Bilkis

A woman is charged with three counts of Criminal Possession of a Weapon. She has moved to suppress the firearms that were seized from her and her boyfriend’s house following the issuance of a search warrant that was targeted not at her, but at her boyfriend. She contends that the search warrant violated her constitutional rights because there was an absence of probable cause to search the premises. Furthermore, there was a lack of sufficient evidence to believe that the woman’s boyfriend lived at the house and the inclusion in the warrant of a no-knock provision was unjustified.

A New York Criminal Lawyer said that in June 12, 2008, a police officer obtained a no-knock search warrant to search the premises of a house in New York, where the woman resides with her boyfriend. Specifically, the warrant was sought to permit a search for marijuana possession, firearms, and ammunition.

According to his warrant application, the police officer believed that the woman’s boyfriend, whom he had been trying to put on surveillance, was a marijuana dealer. The police officer obtained information from the gas and electric company that an individual identified as the woman’s boyfriend used the gas & electric utility services.

Published on: August 2, 2012

Court Finds Warrant Inappropriate

by Stephen Bilkis

In 2003, the Village of Westbury in New York created a question of law that is bound to have effects across the state. A New York DWI Lawyer said the situation was born of a problem with an illegal boarding house. The laws of the villages in the state of New York vary according to the different locations, but most of them have zoning restrictions that prevent multiple families from living in homes that are designated by code as being single family dwellings. Homes are given certificates of occupancy when they are built. These certificates of occupancy label the home as either multiple family or single family dwellings. More than one family is not permitted to live in a home that is designated as a single family dwelling.

In this case, a code enforcement officer obtained a search warrant for a house that was located in the Village of Westbury. He based his probable cause for obtaining the warrant on the fact that numerous cars belonging to numerous different families were parked at the location. There were separate entrances to what appeared to be a basement apartment. Three confidential informants came forward and informed him that the owners of the house were charging undocumented workers large sums of money to live in the home. The garbage collector testified that the garbage that was generated from the house was three or four times the average amount of trash that he collects at other houses in the area. The water and electric bills also indicated that more people than the norm were living in the house. With this huge amount of probable cause behind him, the code enforcement officer applied for a warrant. His warrant detailed that he was seeking evidence that more than one family was living in the home in violation of the housing code of the village. The warrant limited the evidence to be removed in that only pictures and videos of the residence would be permitted to be removed from the residence.

The warrant was executed in the early morning hours at about six in the morning. The warrant had specifically stated that because it was a code enforcement administrative warrant and not one of criminal origin, it would not be appropriate to execute the warrant before six in the morning or after nine o’clock at night. The warrant was executed right at the stroke of six. A New York DWI Lawyer that increased the possibility that the officers executing the warrant would encounter a violent incident. When dealing with a situation of forced entry into a person’s home, violence is always a possibility. That possibility of violent reception increases when a person is groggy from sleep and unable to process the situation as quickly as they would if they were not roused from sleep. In this situation, the officers did not encounter violence, but they did run the names and personal identification of the occupants in an attempt to locate individuals who had warrants out against them. They also photographed the occupants of the house, some of these people were only partially clothed because they had been taken from their beds.

Published on: August 2, 2012

Defendant Does his Own Research of Sex Offender Registration Act

by Stephen Bilkis

Statutory law is not as fluid as case law, but there are frequently changes that occur in the law that require the courts to adjust their actions in different cases. A New York Sex Crimes Lawyer said tne case presented in New York, involved an inmate who wanted to be resentenced under the Sex Offender Registration Act. His argument was that he was sentenced as a higher level sex offender than he actually was. He wanted to be reclassified in order to obtain a lighter sentence and less controls on his liberty upon his release. He prepared his argument himself and incorporated his defense into a letter to the courts.

The court officers were impressed with his ability to research the law and to apply his research to his current case. He located a 1909 penal law that the court was not even aware existed. A New York Sex Crimes Lawyer said his contention that the law established sentencing provisions that should apply to his case was an intriguing notion to the court. However, the court did not agree that the differences between the 1909 and the 1967 penal law established a premise to bring otherwise ineligible sentences under provisions that would enable them to be resentenced under the 2009 DLRA. The defendant stated that the 2005 provisions for DLRA are overly complicated is an opinion that is shared by the court. It does not enable the court to ignore the standards of law that are presented. The 2009 provisions are not as restrictive as the 2005 DLRA, but the two statutes are different. They do not negate the applicability of the case law.

The defendant argues that certain statements regulating the calculations of repeat felony offenders that are present in the 2009 DLRA mirror the wording of Article 70. He contends that this wording makes it possible for certain repeat felony offenses to be recalculated for the purposes of resentencing and eligibility for resentencing under the SORA statute. The court does not agree with his argument. The calculation provisions that are in place are there to restrict the offenders of violent or sexual offenses. A Nassau County Sex Crimes Lawyer said these provisions are aimed at offenders who are likely to repeat their offenses and endanger the public welfare. The court reviewed the subject’s history and determined that he would not be eligible for resentencing even if his argument was correct. It is up to the panel to determine who is and is not a good risk as far as their recidivism rates for the offenses that are listed in the law. In the case of this particular offender, he had so many offenses that even if some were reclassified, he would not have a sentence difference. According to the evaluation by the Supreme Court, his sentence of three and one half years to seven years would remain unchanged even if he were to have his offense reclassified.

Published on: August 1, 2012

Defendant Charged with Predatory Sexual Assault

by Stephen Bilkis

In New York, there are many different levels of sex crime offenders. A New York Sex Crime Lawyer said often the difference between the crimes are reduced to one or two words that are found in the different laws. In one case that occurred on May 2, 2011 and on May 14, 2011, the same offender was involved in both cases. On May 2, 2011, he was charged with sodomizing a young woman forcibly and against her will by forcing her to commit oral sex on him and then forced anal sex on her. On May 14, 2011, before he could be arrested on the first offense, he assaulted another woman. During this assault, he forcibly fondled the woman’s breasts and then raped her vaginally.

He was charged with Predatory Sexual Assault in both cases. However, his indictment passed down by the Grand Jury, only charged Predatory Sexual Assault in the case of the victim on May 14, 2011 and did not proceed on the charges of Predatory Sexual Assault in the case of the victim who was assaulted on May 2, 2011. The reason for this action, was that the charge of A New York Sex Crimes Lawyer said predatory Sexual Assault requires that the action must have been taken on at least one prior occasion. In this case, a New York Criminal Lawyer the court determined that the more serious offense of Predatory Sexual Assault would only apply to the second offense with the first offense used to support the charge on the second victim. Predatory Sexual Assault is a more serious violation that is used to get serial sexual offenders off the streets longer than in the case of one time isolated incidents.

The defendant made a motion to the court to dismiss the charges in their entirety. He contends that since both cases were indicted at the same time, and the first offense was not indicted at all, that there is no precedent case to base the Predatory Sexual Assault charges on in the second offense. The prosecution contends that the Grand Jury heard the testimony in its entirety and determined that the indictment was prepared correctly. There is no wording in the legal statute that provides that the precedent case for Predatory Sexual Assault cannot be submitted at the same proceeding as the case that charges Predatory Sexual Assault. A Nassau County Sex Crimes Lawyer said the defense does not agree.

Published on: August 1, 2012

Court Discusses Presence of Probable Cause

by Stephen Bilkis

The Facts:

A New York DWI Lawyer said a customer service agent for an airline at Los Angeles International Airport became suspicious of two cartons delivered to the terminal. The cartons had been left for shipment to New York’s Kennedy Airport, consigned to a certain individual, care of defendant. Acting under tariff regulations, the agent slit the larger of the two cartons and observed what, from his previous experience, he believed to be marijuana. The Los Angeles police were notified who, without a search warrant, inspected the contents and confirmed the agent’s discovery. One of the cartons was emptied of its contents, refilled with sand, and both cartons were sent on their way. At 11:30 P.M. that evening, one of the officers involved telephoned a detective of the New York City police who has been a member of its Narcotics Bureau for 12 years. According to the detective, the officer told him that the marijuana was on its way to Kennedy Airport, that they have already got some out and that the airline employee found it.

The following morning, the detective went to the Kennedy Airport with knowledge of the defendant’s name, the air flight number, arrival time, and air bill number. At 7:00 A.M., the two described cartons arrived. They were marked with the names of the recipient, care of defendant. The detective went close to the shelved cartons and detected a strong odor of marijuana. He did not open the cartons but kept them under surveillance.