New York Criminal Lawyer Blog

Published on: March 29, 2014

His test was essentially an aggregate weight analysis

by Stephen Bilkis

The defendant moves for a trial order of dismissal upon a charge of sale and marijuana possession of approximately nine pounds, under the statute by which the sale of more than a pound of marijuana is punishable as a class D felony, and marijuana possession of more than a pound is punishable as a class D felony.

The motion followed the testimony of the People’s expert witness, a New York State Police chemist, who testified that while marijuana was present, in some unknown amount, in each of the samples taken from each of the twenty bags which comprised the alleged sale, he did not and cannot plausibly perform the kind of quantitative analysis by which the weight of the marijuana can be determined.

The issue goes to the very integrity of the statutory scheme by which marijuana has been classified, under the Marijuana Reform Act of 1977, as a commodity to be measured, for purposes of criminal gradations, under a pure weight standard. It is argued that the statute, as written, forecloses conviction, in this case, for anything but minute quantities, whether possessed or sold. The Court believes the defendant’s legal position to be, in part, correct.

Published on: March 29, 2014

919 (Crim.Ct. Bronx Co. 1984)

by Stephen Bilkis

A New York Marijuana Possession the Defendant is charged with Criminal Possession of Marijuana in the Fifth Degree, pursuant to Penal Law § 221.10(1), by an information which alleges, in pertinent part, that on September 8, 2008, at about 12:28 a..m., at Polk Avenue/Lincoln Street, Franklin Square, New York, the Defendant “was observed in possession of a clear plastic wrapper containing a greenish brown leafy substance believed to be marijuana.

The Defendant now moves for, inter alia, an order dismissing the accusatory instrument as facially insufficient, pursuant to CPL §§ 170.30, 170.35 and 210.25(1). The Defendant bases this motion upon the failure of the People to annex a Forensic Evidence Bureau report) providing a laboratory chemical analysis of the substance seized from the Defendant. The People oppose this branch of the Defendant’s motion arguing that the allegations set forth in the information adequately inform the Defendant of the charges against him, prevent the Defendant from being tried twice for the same offense, and provide reasonable cause to believe that the criminal Defendant committed the crime with which he is charged. The People further argue that the deponent’s observations are not hearsay and are based upon the officer’s years of experience and training in narcotics identification. Alternatively, the People, who concede that they are not presently in possession of an FEB, claim that “one will be provided in the near future negating the need to dismiss the instant charge.”

The information will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereo, and a factual part containing “a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges” CPL § 100.15(3) based upon either the complainant’s personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which “provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information. “Reasonable cause to believe that a person has committed an offense’ exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” CPL § 70.20

Published on: March 28, 2014

CPL §440.10 and 440.20

by Stephen Bilkis

A Queens Criminal Lawyer said that, the defendant, filed a motion with this Court vacating his judgment of conviction pursuant to CPL §440.10 and 440.20. In this motion, the defendant alleges that he was deprived of effective assistance of trial counsel. In this claim, the defendant specifically alleges that his trial counsel was ineffective in that counsel failed to argue that the defendant’s North Carolina convictions did not qualify the defendant as a second felony offender and that trial counsel improperly advised the defendant against testifying at the trial or this indictment.

In addition, the defendant alleges that he was improperly adjudicated a second felony offender at his sentencing hearing. The People oppose the defendant’s application in its entirety. In addition, the People seek an order of this Court enjoining the defendant from filing any further pro se motions.

This indictment arose out of an incident that took place on June 11, 1996. On that date, the defendant, and his co-defendant cut through a chain-link fence that surrounded the Custom Coach Limousine Company, on Hillside Avenue, in Queens. Then, after knocking a hole in a wall, the defendant and his co-defendant entered an office and proceeded to ransack file cabinets, overturn a desk and remove keys for several limousines parked outside. Each defendant proceeded to steal a limousine.

Published on: March 27, 2014

District Attorney has advanced two additional arguments

by Stephen Bilkis

A Queens Criminal Gun Crime Lawyer said that, the defendant is charged, inter alia, with criminal sale of a controlled substance in the third degree, criminal possession of a weapon in the third degree and robbery in the third degree. Among the issues presented to this Court during the combined Wade/ Mapp hearing, were defendant’s standing to challenge the search warrant and the propriety of post-arrest stationhouse identification by the undercover police officer. Former counsel, in addition to moving to suppress the identification, has also moved to suppress physical evidence, but failed to specifically request controversion of the search warrant. This Court permitted substitute counsel to seek relief, albeit late, and directed a hearing.

The People called three. As will be more fully explained later, after both parties had rested, but prior to the rendering of a decision, it was discovered that the Detective had aided in defendant’s booking procedure by fingerprinting him. Upon defendant’s application, the Court re-opened the hearing to receive testimony concerning this additional viewing of defendant by the detective and what influence, if any, it had on his in-court identification.

A Queens Criminal Lawyer said that, the Court finds the testimony of the People’s witnesses credible and not marred by any serious inconsistencies. The Court further finds that on November 1, 1990, while acting as an undercover police officer, Detective was introduced to defendant in apartment 6B, at 41-13 10th Street, by a female,. He observed defendant, who was introduced to him as “B,” for four to five minutes, during which time, defendant removed his jacket, revealing a .38 caliber gun in his waistband. The detective again met defendant on November 5, 1990, initially, in apartment 6B, and then in the rear of the project, at 41-14 10th Street, where defendant agreed to sell him 1/8 of an ounce of cocaine. He requested the money first but, when he refused, defendant became angry, went into the building and, when he returned, he threw a packet, containing cocaine, at him. When he took $20 from his wallet, defendant attempted to grab the entire wallet, taking $60.00 in currency and telling him to leave or he would be “a dead man.” This incident lasted approximately 15 minutes.

Published on: March 27, 2014

NYCCS moved to reopen the hearing

by Stephen Bilkis

A child was born to Respondent in September 2006 with a positive toxicology to cocaine. She was premature, underweight and in respiratory distress. No father was named on the birth certificate, however, the mother has identified someone as the child’s father.

A New York County Criminal attorney said that in October 2006, the New York Child Services (NYCCS) filed a neglect petition against respondent. The petition alleged that respondent and the baby both tested positive for cocaine on the date of the birth, that respondent was not regularly and voluntarily participating in a drug treatment program, that respondent had no stable means of support or residence, that she failed to make any plans for the child, that she only visited the child in the hospital once, that she provided no contact information and that her whereabouts were unknown.

NYCCS requested and the Court granted a remand of the child. Pursuant to Family Court Act §1017, the Court directed NYCCS to conduct an immediate investigation of all of the family members who had expressed an interest in caring for the child, including the maternal aunt, the maternal grandmother and the maternal grandfather. Shortly thereafter, NYCCS certified the child’s maternal aunt and her fiancé, as kinship foster parents and the child was placed in their home.

Published on: March 26, 2014

Defendant Man cites a case

by Stephen Bilkis

The Defendant Man was arrested for driving while intoxicated (DWI). He submitted to a breathalyzer test which determined his blood alcohol level to be .147%. Prior thereto, the Defendant Man was convicted of driving while intoxicated (DWI) in violation of Vehicle and Traffic Law. Based upon his arrest and prior conviction, his vehicle was seized pursuant to the County Code. The Defendant Man subsequently was charged by way of a felony complaint with driving while intoxicated (DWI) and he pled guilty to operating a motor vehicle while under the influence of alcohol as a felony.

The County Code provides that any property which constitutes the proceeds of an offense, the substituted proceeds of an offense or an instrumentality of an offense shall be seized by any peace officer, acting pursuant to his or her special duties, or police officer may upon probable cause to believe that an offense, as defined in this article, has been committed, and may be forfeited as hereinafter provided.

The seizing agency shall send notification of the seizure to all titled owners, registrants on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested, within five business days of the seizure. Such notification shall inform the recipient that there will be a hearing promptly scheduled before a neutral Magistrate to determine whether probable cause existed for the defendant’s warrantless arrest, whether the County is likely to succeed on the merits of the forfeiture action, whether retention is necessary to preserve the vehicle from destruction or sale during the pendency of the forfeiture proceeding, and whether any other measures would better protect the County’s interest during the proceeding.

Published on: March 26, 2014

New York had jurisdiction to prosecute him on the conspiracy

by Stephen Bilkis

An underlying investigation was conducted and it was focused on a garage operated by a man. The surveillance of the garage, combined with the information obtained from months of telephone calls intercepted pursuant to eavesdropping warrants, disclosed that the operations were headed by criminal individuals in three different cities. It was determined that the man headed the New York operations along with another, and the offender in this matter was their partner. The said individuals employed many others to drive, store, and otherwise take care of the drugs and equipment during the process. Indeed, the transportation and storage of the drugs was carefully planned so that the said individuals who acted as managers did not come into physical contact with the criminal drugs.

The offender and the man spoke frequently by telephone, both to tell one another about the progress of arranging for cars with the necessary hidden compartments and to report the progress of the trips by which drugs were transported to New York. When problems arose, such as a car being stopped or a driver being arrested, they discussed over the telephone how to deal with the situation. In one intercepted conversation, the offender specifically referred to his responsibility and to his intention to take care of the workers’ travel expenses related to problems encountered on a particular trip. And, on one occasion, the offender made a trip to New York, and visited the garage.

Afterward, one of the cars used by the operations was stopped and searched, turning up 21 kilograms of cocaine along with business cards, including the garage’s business card. Another of the cars was later retrieved from the parking lot of one shopping center and searched, and an additional 30 kilograms of the drug cocaine were recovered from a hidden compartment in it.

Published on: March 25, 2014

The issue in this case is whether the court erred in convicting defendant of the crime of grand larceny.

by Stephen Bilkis

A Queens Grand Larceny Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Queens County, rendered October 28, 2010, convicting him of grand larceny in the first degree, upon his plea of guilty and imposing sentence.

A Queens Criminal Lawyer said that, the defendant was charged, by felony complaint, with, inter alia, grand larceny in the first degree under Penal Law § 155.42. The felony complaint alleged that the defendant knowingly and unlawfully stole property exceeding one million dollars in value by using personal identifying information he received from four named individuals, and, inter alia, securing mortgages on two properties in the name of one of the alleged victims without that individual’s knowledge or permission. The defendant waived indictment by a grand jury and pleaded guilty under superior court information to grand larceny in the first degree and scheme to defraud in the first degree, although the plea to the scheme to defraud count was subsequently vacated at the time of sentencing. The charge in the superior court information named two financial institutions “and others” as alleged victims of the crimes. As the defendant properly contends, the judgment of conviction must be reversed, the plea vacated, and the superior court information dismissed.

The issue in this case is whether the court erred in convicting defendant of the crime of grand larceny.

Published on: March 23, 2014

Mid-Atlantic Regional Laboratory

by Stephen Bilkis

Defendant is charged with Criminal Sale of Marijuana in the 4th Degree, Unlawful Possession of Marijuana and Criminal Possession of a Hypodermic Instrument. The complaint alleges that defendant sold a bag of marijuana for $10 to an undercover police officer, and once arrested he was found to possess four more bags of marijuana and one hypodermic instrument.

A New York Marijuana Possession lawyer said that at arraignment, in order to convert the complaint into an information, the People filed with the court a long form supporting deposition, containing a series of paragraphs with boxes to check where applicable–a format approved in a case, and in compliance with CPL § 100.30. Insofar as relevant, the first page of the properly executed form contains a paragraph in which the undercover officer corroborates the contents of the complaint, and adds that he gave the recovered substances to another officer, for “field testing”. The second page of the supporting deposition contains two paragraphs in which Police Officer states that he tested both the substances purchased from the defendant and the substances recovered incident to his arrest.

Upon filing, the People requested that the court declare the complaint had thereby been converted to an information. Defense counsel objected on the ground that conversion could only be accomplished by the filing with the court of a standard police laboratory report showing the presence of marijuana. The criminal court reserved decision for a formal motion addressing the issue presented: whether for a charge of possession or sale of marijuana the affirmative opinion of a police witness who has received special training in the identification of marijuana coupled with a positive test result yielded by that same witness who has performed a chemical field test on the recovered substance is sufficient to convert a complaint into an information.

Published on: March 23, 2014

Plaintiff-bank’s allegations

by Stephen Bilkis

Plaintiff-bank’s allegations:

Sometime in May 2003, three discounted non-interest bearing promissory notes were fabricated by defendant-bank and certain of its subsidiaries and sold to plaintiff-bank, each bearing the face amount of $ 5 million; the sale was part of a global fraud scheme orchestrated by defendant-bank to generate money to assist nonparty P1, an Italian food conglomerate, to repay loans made to it by defendant-bank; the notes were issued by nonparty P2, a P1 subsidiary incorporated in Uruguay, to defendant-bank’s New York branch (defendant-bank NY), which in turn sold them to nonparty P3, a defendant-bank affiliate; plaintiff-bank purchased the notes from P3; the notes were each accompanied by a guarantee of payment executed by P1 and a side letter from P2 to criminal defendant-bank NY; the side letter recites P2’s certification that the proceeds of the “advance evidenced” by the notes will be utilized to finance the expansion of P1 South American subsidiaries’ raw material supply sources and to further upgrade and refurbish P1’s industrial plants in Brazil and other South American countries; the side letter also refers to the funds advanced as “financing” and sets forth projections of the value of the goods expected to be exported by P1 companies based in South America from 2003 through 2008; P1’s financial stability worsened and the Italian and Brazilian governments began criminal investigations into P1’s financial structure; and sometime in December 2003, P1’s distressed financial condition and the governmental criminal investigations became public knowledge; on 4 May 2004, the notes matured but have not been repaid; and, soon after, plaintiff-bank sold one of the notes to one of its affiliates, referred to by the parties as, plaintiff-bank Luxembourg.

Plaintiff-bank filed a claim, based on the notes in bankruptcy proceedings commenced in Italy against P1’s parent company, nonparty P0, for common-law fraud and aiding and abetting fraud, and seeks to recover $ 14,566,388.37 in compensatory damages and $45,000,000 in criminal punitive damages.