New York Criminal Lawyer Blog

Published on: June 9, 2014

Police Officer arrived at the store after the crime had been committed

by Stephen Bilkis

A Queens Petit Larceny Lawyer said that, the defendant is charged with one count of petit larceny (Penal Law §155.25) and one count of criminal possession of stolen property in the fifth degree (Penal Law §165.40). The defendant has moved to suppress statements on the ground that they were involuntarily made. This court conducted a Huntley hearing on December 18, 2006. At the hearing, Police Officer testified on behalf of the People. The defendant did not testify nor present any witnesses.

A Queens Criminal Lawyer said that, the Police Officer is employed by the New York City Police Department and has been with the Police Department for five years. During this time period, the officer has made nearly 100 arrests and about half of these has been for petit larcenies. He is assigned to the 112th Precinct. On November 30, 2006, the officer was on patrol, in uniform and with a partner, another Police Officer. The officers were in marked car. At about 8:46 PM, the officer received a radio run for a 10-12 which means that a security guard is holding someone. The officers went to a Home Depot located at 75-09 Woodhaven Boulevard in Queens County. The trip took four minutes. They proceeded to the security office, in the rear of the store and were met by two security guards, one individual, and the defendant. The officer described the office as small and being about 4 feet by 8 feet. The defendant was seated in a swivel chair with his hands down behind him. The two security guards were on the defendant’s left completing their paperwork.

A Queens Shoplifting Lawyer said that, the Police Officer asked the individual what happened and he told the officer that he was walking the floor inside the store and observed the defendant remove an item, a MP3 player, from the shelf, place it in his pants pocket and proceed to walk outside the store. Police Officer then asked the defendant what happened. The defendant shook his head and said “I messed up. I should have paid for it.” The officer explained that he was still investigating to determine if a robbery crime had been committed and to ensure that the defendant had no receipt for the merchandise. The officer did not issue Miranda warnings to the defendant.

Published on: June 8, 2014

Petitioner has not been a fugitive for over 13 years

by Stephen Bilkis

Petitioner was charged under a governor’s warrant with being the South Carolina fugitive, who allegedly escaped from the Anderson South Carolina Stockade in 1976. The fugitive was serving a sentence of seven years for passing several bad checks and a probation violation from a prior grand larceny. Petitioner has lived continuously at the same address in Suffolk County, New York since 1983. He was married in 1987, helping to raise his wife’s three children from a prior marriage. He and his wife also had two children of their own in 1988 and 1992.

A Suffolk County Criminal lawyer said that in 1993, Petitioner was arrested on an extradition demand from South Carolina. As a result of information thereafter provided to then South Carolina Governor, the Governor chose not to pursue the extradition.

Twelve and a half years later in October, 2005, while returning from a vacation, Petitioner was arrested at JFK Airport on a computer entry of his being wanted in South Carolina. When the necessary paperwork was not filed within ninety (90) days, the resultant pending charge was dismissed in Criminal Court, Queens County 2006. Petitioner returned to his everyday life.

Published on: June 7, 2014

The Court dismissed the motion

by Stephen Bilkis

This is a Criminal case where the defendant moves to dismiss the indictment against him upon the ground that there is insufficient evidence to sustain any of its 44 counts charging Forgery in the Second Degree and the single count of Grand larceny in the Second Degree.

In a case where herein defendant was the defendant, the Court dismissed a single count indictment for Second Degree Forgery with respect to one check in the amount of $250.00. That check had been made payable to a person by the defendant who endorsed with that name and then his own. Larceny was not charged.

The Court pointed out in that opinion that defendant could create a fictitious payee, intending him to have no interest in the check and then negotiate it as a bearer instrument. There was no evidence in that case that the defendant had the intent to defraud, deceive or injure, necessary elements of Forgery in the Second Degree.

Published on: June 6, 2014

Fam. Ct. Act §351.1 [2

by Stephen Bilkis

This case is a consolidation of eight juvenile delinquency proceedings for a dispositional hearing after a determination that each respondent has committed at least one act which, if committed by an adult, would constitute a crime.

In each case, the court requested that the New York City Department of Probation conduct an investigation into the juvenile’s circumstances and that a written report be prepared for the dispositional hearing.

The court discovered that the New York City Department of Probation employs a computer-based program which contains an inherent bias which results in more favorable and less severe dispositional recommendations being made to the Family Court for female juvenile delinquents than for similarly situated male juvenile delinquents.

Published on: June 5, 2014

CPL Section 40.40

by Stephen Bilkis

Defendant has moved to dismiss the information on the grounds that the current charge of possession of a controlled substance in the 6th degree should have been joined under CPL Section 200.20 with an earlier charge for DWI driving while intoxicated which the defendant pled guilty to in March 1974.

A Suffolk County Criminal attorney said that the charge of driving while intoxicated and the current charge are allegedly related because the controlled substance was seized at the same time as the defendant was apprehended for driving while intoxicated. The defendant also argues that the Court, in its discretion, should dismiss the information pursuant to CPL Section 170.40 on the grounds that the circumstances surrounding the prosecution on this charge require a dismissal in the interests of justice.

Although the defendant pled guilty to the charge of driving while intoxicated he was not arrested for drug possession until April 1974. Defendant argues that the usual procedure of the Suffolk County Police Department was not followed in this case and that he has unnecessarily been subjected to two separate arrests, two separate searches, and two separate arraignments and processing procedures.

Published on: June 5, 2014

CPL 400.21

by Stephen Bilkis

The judgment convicted appellant of the sale (first count) and possession (second count) of a narcotic drug, marijuana, sentenced him to a term of five to seven years on the first criminal count and suspended sentence on the second count. The evidence produced by the prosecution indicated that appellant had sold marijuana to a person, who was employed by the Suffolk County Police Department at $75 a week to uncover evidence and otherwise entrap suspects in connection with the sale of narcotics. He had entered such employ around June, 1965, after he had been convicted of petty larceny and given a suspended sentence.

A Suffolk County Criminal Drug Crime lawyer said that the sale was allegedly made in September 1965, in West Sayville, Appellant testified on his own behalf and denied that he had sold any marijuana. Moreover, he maintained that he was at his karate school, at the time of the alleged sale. His alibi was a plausible one and, moreover, there was testimony from ostensibly disinterested witnesses tending to support it, thus creating a close question as to whether he was present at the time and place when and where the sale allegedly took place. Yet, there was not a single instruction to the jury on alibi. Appellant’s attorney requested an instruction thereon.

In court’s opinion, the response of the court was not only inadequate but also unclear. Under the circumstances of the case, the court should have charged substantially as follows: ‘If proof as to an Alibi raises a reasonable doubt in the minds of the jury as to whether the accused was present at the place and time where and when the crime was committed, the accused is entitled to have the defense fairly treated like any other defense and is not obliged to establish that it was impossible for him to commit the act charged. If under the evidence tending, if true, to prove an Alibi, it may have been Possible for the defendant to have committed the crime, it is still for the jury to determine whether, if the evidence is true, he availed himself of the possibility it afforded. If proof as to an Alibi, when taken into consideration with all the other evidence, raises a reasonable doubt as to the defendant’s guilt, he is entitled to an acquittal’. In other words, it is not necessary or required that a defendant should show that it was impossible for him to have committed the crime. Under the circumstances, and in the interests of justice, the conviction should be reversed and a new trial ordered.

Published on: June 5, 2014

Mrs. D. testified that she and the defendant share a great marriage

by Stephen Bilkis

This is a proceeding wherein the defendant, D.S.D. entered a plea of not responsible by reason of mental disease or defect pursuant to CPL 220.15 to the crime of Criminal Possession of a Weapon in the Second Degree, and to other related offenses.

It was alleged that on 23 January 2004, the criminal defendant displayed a firearm while threatening to use it against the complainant, the defendant’s sister-in-law, and that said actions caused her fear of physical injury.

A commitment order, pursuant to CPL 330.20[6], was issued and the defendant was remanded to the care and custody of the State Commissioner of Mental Health. The defendant was confined in a secure facility pursuant to CPL 330.20.

Published on: June 4, 2014

The issue in this case is whether the evidence presented should be suppressed

by Stephen Bilkis

A Suffolk Marijuana Possession Lawyer said that, this is an appeal by defendant from a judgment of the Supreme Court, Suffolk County, rendered December 8, 1983, convicting him of criminal possession of marijuana in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of defendant’s pretrial motion which sought suppression of physical evidence.

A Suffolk Criminal Lawyer said that, according to the People’s evidence adduced at the suppression hearing, defendant’s car was stopped for speeding on Montauk Highway by two police officers. A short time later, the Officer who was also patrolling the area, arrived at the scene. Although the officers had not called for assistance, he testified that he left his car and walked towards defendant’s car in order to check the inspection sticker on the windshield. As he walked from the back to the front of defendant’s car, on the driver’s side, he “happened to look down”, and saw a burlap bag, “the size of a bank bag”, laying on its side on the floor behind the driver’s seat. He noticed a white substance and some pills protruding from the top of the bag. Based on his training in the identification of controlled substances, he “felt” that the white substance was cocaine. He opened the car door, removed the bag and looked inside. Thereupon defendant was arrested. He also testified that when he was by the car, he smelled what he “felt was marijuana coming from the trunk”. About an hour after defendant was arrested, the trunk was searched, and a quantity of marijuana was found in the trunk in plastic bags. He testified that the marijuana found in the trunk had nothing to do with defendant’s arrest.

A Suffolk Unlawful Possession of Marijuana Lawyer said that, while the officer testified on direct examination that he was looking straight down through the driver’s window when he saw the burlap bag, it was brought out on cross-examination that there were two windows on the driver’s side of this two-door car and the officer equivocated as to which window he looked through. He stated, “I don’t recall. It might have been the driver’s window”. On redirect examination, after he looked at a photograph of the car in evidence, which he testified was “a fair and accurate picture of the defendant’s vehicle”, the officer testified that he had been looking through the rear window when he saw the burlap bag.

Published on: June 4, 2014

People v. Coniglio

by Stephen Bilkis

People v. Coniglio

Court Discusses Whether a Dying Declaration was Admissible in a Murder Trial

The defendant was indicted for two counts of murder and one count of attempted murder. The defendant requested a motion to suppress statements made by the deceased and by himself, and the gun and bullets found in defendant’s automobile. The motion to supress the dying declaration made by the deceased was not a true suppression motion as it called for the evidentiary ruling on the admissibility of the statement made. A suppression of evidence at a hearing was based on whether constitutional rights were violated by improper acquisition of evidence. It did not touch upon trial relevance of evidence, or admissibility, but function is simply to bar or admit on constitutional grounds.

Published on: June 4, 2014

People v Cabrera

by Stephen Bilkis

People v Cabrera

Court Discusses Whether the Conduction of a Checkpoint was Unconstitutional

The defendant was arrested for driving while intoxicated DWI after being stopped at a police vehicle checkpoint. The defendant requested a pre-trial suppression of his breathalyzer results on the ground that the conduction of the checkpoint was unconstitutional.