New York Criminal Lawyer Blog

Published on: May 8, 2012

Defendant Brings Case for Sentencing Error

by Stephen Bilkis

On 3 May 1995, defendant was convicted of two counts of Robbery in the First Degree, six counts of Robbery in the Second Degree, one count of Assault in the Second Degree, one count of Criminal Possession of Stolen Property in the Fifth Degree, and two counts of Criminal Possession of a Weapon in the Fourth Degree.

On 15 May 1995, defendant was sentenced, as a second violent felony offender, to an indeterminate term of imprisonment of ten to twenty years for each Robbery in the First Degree conviction, an indeterminate term of imprisonment of seven and one-half to fifteen years on five of the six counts of Robbery in the Second Degree, an indeterminate term of imprisonment of three and one-half to seven years on the Assault in the Second Degree conviction, one year determinate on the Criminal Possession of Stolen Property in the Fifth Degree conviction, and one year determinate for both Criminal Possession of a Weapon in the Fourth Degree counts.

The sentencing Court ran the two Robbery in the First Degree sentences, and two of the Robbery in the Second Degree sentences consecutive to one another, for a total indeterminate sentence of thirty-five (35) to seventy (70) years.

Published on: May 7, 2012

Court Discusses Alford Plea

by Stephen Bilkis

The plea that is entered in a criminal case is of great importance in how the crime and the person convicted of the crime is treated in the system of jurisprudence. Some people accept plea agreements without thoroughly understanding what these agreements entail. One of the most frequently misunderstood pleas that a defendant can enter is an Alford-Serrano plea. Most courts call it an Alford plea for brevity sake. An Alford plea is a plea that a person can enter without admitting guilt to the offense. A New York Criminal Lawyer said an Alford plea is in essence a way for a defendant to state that they are innocent, but that they believe that based on the evidence, a jury would find them guilty of the offense. A person will use an Alford plea as an attempt to reduce the overall jail time.

Some of the issues that most defendants do not understand as they relate to an Alford plea is that even though the person is proclaiming their innocence, they are considered by the court just as guilty as a person who enters a regular guilty plea. There is no difference in the treatment of an Alford guilty offender, and one that pleads just plain guilt. Sometimes, especially in the case of sexually based offenses, this can pose a problem for the defendant.

In one case, which occurred in Richmond County New York, in 1994, a man took an Alford plea in the rape case of his own fifteen-year-old daughter. The child is of limited intelligence and unable to process the experience, however, it appears that when the child was around 12 or 13 years of age, during a three-month period, he had sexual relations with his daughter. A New York Criminal Lawyer said the defendant adamantly denied that he ever had sex with his daughter, however, everyone involved was concerned that the child would be overly traumatized by having to testify against her own father in court. In order to prevent her from having to endure any more trauma than she already had, her father took an Alford plea to one count of rape in the third degree. The prosecutors, the mother, and the child all firmly stand by the evidence that the father raped her. The rape had occurred approximately two years prior to the conviction under the Alford plea.

Published on: May 7, 2012

Defendants Claim Confessions Read at Trial Unfairly Swayed Jury

by Stephen Bilkis

On January 10, 1990, two men who were drug dealers met and decided that they were going to have to rob a convenience store owner from India because he owed them $5,000 for a previous drug deal. A New York DWI Lawyer said he had not paid the men and they wanted to make an example of his as well as recoup some of their losses. They went to the store that evening and he was not there. The following day, the two men met with two other men and arranged to get a van and meet at the convenience store that night. One man drove the van and dropped the others off at the store.

There was one other employee in the store that night. He was also from India. He saw the discussions that were taking place between the storeowner and the two men who were at the store, but claims that he did not take any notice. He had gone to work at the convenience store for less pay than he had been making as a cab driver before taking the job. There was some speculation as to his involvement in the drug business that was going through the convenience store. The store was to close at around three in the morning. At closing time, the employee counted out the store’s receipts for the day and gave them to the owner. It was about $2,500 in cash. The two men accompanied the storeowner and the employee out of the store. In front of the store, the owner and employee pulled down the security shutters and locked the building.

It was then that the employee said that the men pointed a gun at the storeowner and the other man put a gun into the employee’s side and told them to get into the storeowner’s car. They were taken to an isolated area where the man in the front passenger seat shot the storeowner in the head. The van pulled up and the men got out of the car with the employee. They left the storeowner slumped over his steering wheel presumably dead. The employee was taken back to his home and told that if he told anyone about what he had seen, he would be killed. The other men left the van abandoned and got into a different vehicle and everyone was dropped off at their homes.

Published on: May 7, 2012

Jury Given Incorrect Evidence

by Stephen Bilkis

In 1988, a man and his friend along with their two wives were running a drug enterprise out of a one room apartment with an attached kitchen located on 88th street in Queens, New York. A New York Drug Crime Lawyer said an undercover police officers had been focused on this apartment for several weeks. In fact, they had conducted undercover narcotics purchases on three separate occasions.

They were made on September 13, September 20, and September 29. After making all of these purchases, the police officers were able to obtain a search warrant to search the residence. After making the purchase on the 29th, the officers executed the search warrant on the residence. They uncovered several tinfoil packets of cocaine and angel dust. One packet of cocaine was located on the floor in between the couch and the wall. It was about a four or five inch space between the wall and the sofa. A New York Drug Possession Lawyer reported that six dollars was located in a closet that had cocaine residue on it. In another closet officers recovered $110 which was the money that was marked by them as the money that they had used to purchase narcotics at that location. The $110 was mixed in with another $850 in cash that was hidden in a child-sized purse. In the last closet, they located $3,630 in cash.

All four of the defendants were present when the search warrant was executed. They were all charged with possessing a narcotic with the intent to sell it. It is legal practice to charge everyone in a room with the possession of a narcotic that is in the room since all of the people are found to have knowledge of or should reasonably have known that the drugs were there. The drugs do not necessarily have to be in plain view. The drugs can be in a container or other item that is accessible to any of the occupants of the room. The narcotics can be in a completely separate room if they are visible to the occupants of a different room. In this case, the narcotics that were in the room, was the one packet that was located between the sofa and wall. a Nassau County Drug Possession Lawyer said the court ruled that that particular packet could not be deemed as accessible to everyone in the room or that all of the occupants of the room would have known that it was there. The fact that it was not in open view or in a container in open view makes it impossible for the police to assume that anyone other than the one owner could possibly have known that it was there. When it is determined that narcotics or other illegal drugs are in open view and in close proximity to persons, it is referred to as the drug factory presumption of Penal Law §220.25 (2).

Published on: May 7, 2012

Court Erred on Motion for Severance of Actions

by Stephen Bilkis

A manager was with another employee when they were on route in a company van to one of its nearby stores with a bag containing the cash receipts. A New York Criminal Lawyer said after noticing that a vehicle in front of his van pulled off onto the shoulder of the road, the van made a strange noise and lost power. As he pulled onto the shoulder, the manager observed the previously stopped vehicle reenter the roadway and stop in front of his stalled van. Two individuals (or defendants) in dark clothes wearing masks and brandishing shotguns approached the van from both sides and shouted orders to the manager and his companion. The manager, seeing the weapons, took the bag containing the cash receipts and held it out the open window. The robbers took the money, duct-taped the manager and the employee companion side-by-side on the floor of the van, and drove with them at gunpoint. When the robbers fled, the manager and his employee companion were left in the van. Ultimately, they acquired police assistance.

Notwithstanding an extensive investigation, police authorities were unable to solve the robbery until they received a telephone call from an individual (or the caller), whom they later identified. The caller met with the investigators and provided both the details and names of three individuals involved in the robbery.

Over the next few months, the investigation led to defendants’ arrests.

Published on: May 7, 2012

Court Discusses Relation Back Rule

by Stephen Bilkis

On 10 December 1992, near the intersection of Elizabeth and Broome streets in New York County, a robbery occurred during which an individual grabbed a necklace after a brief struggle. Thereafter, a New York Sex Crimes Lawyer said at the fifth police precinct the victim identified defendant from photographs as the perpetrator.

On 20 January 1993, defendant was arrested for the robbery when he kept his regularly scheduled appointment with his parole officer. At that time, defendant was also carrying seven glassines of heroin, which he allegedly admitted to his parole officer that he was intending to sell.

On 21 January 1993, defendant was arraigned in Criminal Court on a felony complaint charging the crimes of Robbery in the Second Degree and Criminal Possession of a Controlled Substance in the Third Degree.

Published on: May 7, 2012

Court Reverses Prior Ruling Regarding Robbery Charge

by Stephen Bilkis

One Saturday morning, a military air force base exchange was robbed. The robber took nearly $30,000 from the cashier’s safe and putted into a plastic bag taken from a trash can near the cashier’s cage.

At the trial, a New York Criminal Lawyer said none of the five witnesses could identify the robber. The robber wore a hooded sweatshirt, used a towel to conceal the lower half of his face and another towel wrapped around his arm during the incident. One of the witnesses testified that she saw a black object inside the towel, which she thought was a gun. Another witness also testified that when a woman approached the cashier’s window in the exchange office, the robber raised his towel-wrapped arm, pointed it to the woman and threatened to kill her.

After the robbery, an airman mentioned the incident to his colleague. Less than three hours later, the airman paid a car dealer amounting almost $6,000 in cash as a down payment on a new car. The money that the airman spend was still bundled in wrappers that were dated, initiated and stamped with an official seal of the base exchange and during that weekend the robber spent close to an additional $2,000 on other purchases.

Published on: May 7, 2012

Court Discusses Felony Murder Rule

by Stephen Bilkis

According to the accused man’s trial testimony, he and several others met at an uptown hotel to arrange a robbery of their acquaintances that were operating a shooting gallery for heroin in a nearby apartment. They completed their plans and proceeded to the apartment, armed with at least two loaded guns. They ordered the occupants to strip, tied them up, blindfolded them and removed their money and clothing.

The accused man states that after he left the apartment, as he was going down the stairs his female accomplice shot the owner of the apartment, the man happened to be her former lover. He claims that she was motivated by resentments stemming from this prior relationship, and that the killing was therefore not connected to the robbery.

New York Criminal Lawyer the jury offered no testimony to dispute the accused man’s version of the events. The surviving robbery victims did not see who actually fired the fatal shot as they were all still blindfolded. The accused man does not argue, nor could he, that the fact that he was not proven to be the actual shooter absolves him of the felony murder charge. Having admitted his participation in the robbery, the accused man would ordinarily be responsible for the murder of the apartment owner even if he lacked the specific intent to cause his death and did not personally contribute to the homicide. He claims, however, that the homicide case was not sufficiently connected to the felony to invoke the provisions of the felony murder statute. At issue is the meaning (if any) of the phrase in furtherance of the robbery as used in the felony murder statute. The question does not appear to have been answered in any reported decisions.

Published on: May 6, 2012

Court Hears Appeal for Retail Theft

by Stephen Bilkis

The appellant of the case is Dude Emshwiller. The appellee in the case is the State of Florida. The case is being heard in the second district of the District Court of Appeal in Florida.

Appeal

Dude Emshwiller, the appellant is appealing his original judgment and sentencing. The original sentence is for three years on the charges of grand theft.

Published on: May 5, 2012

Defendants Claim Their 14th Amendment Rights Violated

by Stephen Bilkis

The plaintiffs and appellants in the case are Lois White et al. The defendants and appellees in the case are the Scrivner Corporation et al. The case is being heard in the fifth circuit of the United States Court of Appeals.

Case History

A New York Drug Crime Lawyer said one night Lois and her daughter Sandra White, along with her sister Gloria Pratt, went shopping at a food store owned by Scrivner Corporation, the assistant manager of the shop accused Lois of taking a roast out of the meat department of the store. The assistant manager requested that Lois and her daughter and sister come with him to an area located at the rear of the store. He asked for permission to search through their purses and while looking through the women’s purses he found a pistol located in Lois Whites purse. He told the women to stand by the wall and he made a call to the police department. The police arrived and arrested White for having a weapon that was concealed. The food goods that White was accused of stealing were never found.