New York Criminal Lawyer Blog

Published on: March 16, 2014

The defendant moves for an order of dismissal

by Stephen Bilkis

The judgment of the Supreme Court convicting the defendant, after jury trial, of criminal possession of a controlled substance in the fifth degree and seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 2 1/2 to 5 years and 1 year, respectively is affirmed.

The defendant relies on the decision which concluded that the knowingly requirement of Penal Law, setting forth the elements of criminal drug possession of a controlled substance in the second degree, applies also to the weight of the controlled substance, and that the trial evidence was insufficient to satisfy that mental culpability element. The defendant’s challenge here to the sufficiency of proof as to his knowledge of the weight of the controlled substance, however, was not preserved; he failed to object to the charge as given to the jury, and the court’s consideration of his claim is foreclosed as a matter of law.

Moreover, even if the issue had been preserved, it has not been shown that the trial evidence here was insufficient to satisfy the mental culpability element. In examining the record for legal sufficiency, the evidence must be viewed in a light most favorable to the People to determine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt. The defendant had thirteen vials of crack containing, in all, 1099 milligrams of cocaine, more than twice the 500 milligram element of criminal possession of a controlled substance in the fifth degree set forth in Penal Law. It is not that he would be expected to know the weight of the cocaine by hefting the vials in his hand but that a rational jury might conclude that a person observed making hand-to-hand contacts with several passers-by in the street and in possession of thirteen vials containing 1099 milligrams of cocaine when the police thereafter approached him, would know the nature and weight of the essential element in the product he was carrying. The Court of Appeals recognized that often there will be evidence from which the requisite knowledge may be deduced. However, the Court was dealing with a conviction for attempted possession of psilocybin, a hallucinogen, in a package of mushrooms, and noted that the same inference may be unavailable for such controlled substances measured by pure weight for purposes of the statutory definitions of the crime but customarily combined with other substances to facilitate handling and use. Penal Law, for violation of which the defendant here was convicted, is similarly in terms of pure weight, but of cocaine, a much more common drug in our society and one commonly sold in the form of crack in vials. Here the test being described whether sufficient evidence was presented at trial from which it could be inferred that the defendant had the requisite knowledge of weight would have been met if the question had been preserved. No marijuana was found.

Published on: March 15, 2014

Detective continued to chase the Mazda

by Stephen Bilkis

This is an appeal where defendant was convicted defendant, after a jury trial, of criminal possession of a controlled substance in the second degree, and sentencing him, as a second felony offender, to a term of six years to life, unanimously affirmed.

A New York Criminal lawyer said that in March 2001, New York Police Department Sergeant was supervising a group of detectives in an undercover narcotics operation, and, along with a Detective was parked in an unmarked van on Riverside Drive, when a white Mazda with New Jersey license plates parked in front of them, next to a fire hydrant. The officers watched as defendant exited the Mazda’s passenger side, and a man exited the driver’s side. The two men walked north to a stairway which led to an underpass beneath Riverside Drive.

Approximately 15 minutes later, defendant and the mane returned to the Mazda, and looked around them before getting into the car and driving away. The Mazda drove north on Riverside Drive, then made a U-turn between 138th and 139th Streets, crossing over double yellow lines and pavement “zebra striping,” which designated that crossing and turning were not permitted.

Published on: March 15, 2014

Appellate Division in the Second and Fourth Departments

by Stephen Bilkis

A Queens Gun Crime Lawyer said that, defendant was indicted for the crime of Criminal Possession of a Weapon in the Third Degree. He has moved to dismiss the indictment on the ground that the prosecutor failed to instruct the grand jury that if defendant possessed the weapon in his home or place of business, the gun crime would be only that of criminal possession of a weapon in the fourth degree, a class A misdemeanor.

A Queens Criminal Lawyer said that, defendant is one of five incorporators and a director and manager of a not-for-profit corporation formed to sponsor domino games and hold domino competitions on the lower east side of Manhattan. He was arrested, while inside his club, in possession of a loaded pistol. He claims that his position as manager and director of the corporation entitles him to invoke the “place of business” exception provided in Penal Law § 265.02(4) as follows: “A person is guilty of criminal possession of a weapon in the third degree when (4) He possesses any loaded firearm. Such possession shall not, except as provided in subdivision one constitutes a violation of this section if such possession takes place in such person’s home or place of business.” The question of whether a not-for-profit corporation can be considered a “business” and whether it is the business of the manager or director so as to diminish his criminal liability are issues of first impression, certainly in New York and perhaps, nationwide.

The issue in this case is whether a social club a type of business exempted under the statute.

Published on: March 14, 2014

Vehicle and Traffic Law § 1192(8)

by Stephen Bilkis

Defendant was indicted for driving while intoxicated (DWI) as a felony and for obstructing governmental administration in the second degree for acts committed. As the basis for elevating defendant’s driving while intoxicated charge to a felony, the People filed a special information charging that defendant had a 1999 conviction for driving with an unlawful alcohol concentration in the state of Georgia, which would have been a violation of Vehicle and Traffic Law § 1192(2) had it occurred in New York.

A New York New York criminal attorney said that defendant moved to dismiss the indictment raising several arguments, including that the date of the Georgia conviction rendered it ineligible to serve as a predicate for elevating the charge to driving while intoxicated as a felony. County Court denied the motion, finding that the legislative intent behind Vehicle and Traffic Law § 1192(8) was to treat prior out-of-state convictions as if they were prior convictions for the same actions occurring in New York State. The same DWAI court denied defendant’s motion to suppress the evidence against him and defendant ultimately pleaded guilty to driving while intoxicated as a felony in full satisfaction of the indictment.

The Appellate Division reversed, vacated the plea, dismissed the first count of the indictment for felony driving while intoxicated without prejudice to the People to represent appropriate charges, reinstated the second count of the indictment for obstructing governmental administration and remitted to County Court for further proceedings on that second count. The Court determined that, based on the language of the 2006 amendment to Vehicle and Traffic Law § 1192(8) and its enabling language, convictions occurring prior to the effective date of the statute, including defendant’s 1999 Georgia conviction, could not be used to raise a driving while intoxicated (DWI) offense from a misdemeanor to a felony. The Court, however, upheld County Court’s suppression ruling. A Judge of this Court granted both parties leave to appeal.

Published on: March 14, 2014

The investigator then approached the man in the parking lot

by Stephen Bilkis

A criminal investigator was assigned to investigate border crimes. He approached a man outside a hotel and asked to speak with him. The investigator had been conducting surveillance of the man since the day before after receiving a tip from an informant. Eventually, the investigator found a bag of what he suspected to be marihuana in the man’s backpack. The tests confirmed it was 15.9 ounces of marijuana. The man was then escorted to his room where his co-offender had been awakened by another agent who was already present in the room. The agents searched the luggage and room. They then found four small bags containing rocks of crack cocaine and cocaine which had an aggregate weight of seven grams was found inside a closed camera bag, which also contained a roll of approximately $500 in cash and the co-offenders identification. The man and his companion were then arrested and read their Miranda rights.

After a hearing, the court denied the offender’s motion to suppress the drugs and other evidence. The court, however, precluded the complainant from introducing any of the offender’s statements to police after the discovery of the marihuana in his backpack. As a result, no Huntley hearing was held.

Sources revealed that prior to the trial the man’s co-offender entered a plea of guilty to criminal possession of a controlled substance in the third degree, the sole count against her, admitting she possessed the cocaine in her camera bag with intent to sell it.

Published on: March 11, 2014

DM appealed the denial with an assigned counsel

by Stephen Bilkis

On 2 September 1998, a first meeting was had between CI and JC. However, CI postponed the transaction. Thus, on 3 September 1998, a second meeting was had and it was where CI met with DM on a Queens Street. DM then told CI to come to his house but CI refused and the two then walked on where they met up with JC who was driving a Maxima. DM allegedly said that the $2M was in the rear seat of this car and both DM and JC asked the “seller”, CI, to enter the vehicle to check out the money. CI refused to do so. DM then removed a suitcase (contents unknown) from the rear seat and placed it in the trunk. Again, CI was asked to inspect the money which was allegedly in the suitcase. At that point, DM and JC each held a semi-automatic handgun, each defendant pulled back the slide of his handgun in order to load a bullet into the chamber, and each defendant then pressed the nuzzle of his handgun against the rib area of the CI, and DM stated, in substance, “Get in the car, or I’ll put one in your side.”

Detective JL, who was in charge of the operation recovered a loaded semi-automatic handgun from the ground where he saw DM throw it and other members of his team recovered a similar weapon from the trunk of the car, which had remained open, where they saw JC throw it.

DM and JC were arrested and charged with Attempted Criminal Possession of Drugs in the First Degree, Kidnapping in the Second Degree, Criminal Possession of a Weapon (a loaded firearm) and Attempted Robbery in the First Degree. DM was held without bail and was later indicted for these crimes.

Published on: March 11, 2014

Hollis Court Boulevard

by Stephen Bilkis

A Queens Gun Criminal Lawyer said that, where an accomplice to a robbery acts solely as the getaway driver and participates in neither the threat of force, its use, nor the taking of property, and is not in the immediate vicinity of the robbery or so positioned as to be capable of rendering immediate assistance to the robber, he is not “another person actually present” within the meaning of the aggravating accomplice factor of robbery, second degree.

A Queens Criminal Lawyer said that, defendant appeals from the affirmance of his conviction, after a jury trial, of robbery, second degree, arising from the holdup of a bank. His chief contention is that the trial court should have granted his dismissal motion, made at the close of the People’s case, upon the ground that there was insufficient proof, as a matter of law, to show that he committed the robbery while “aided by another person actually present”. A divided Appellate Division affirmed, holding, in pertinent part, that a getaway driver “shown to be parked approximately 15 feet from the bank at the time of the robbery” could be considered “actually present” at the robbery, inasmuch as the history of the Penal Law “suggests an elimination” of the distinction between actual and “constructive” presence. For reasons which follow, we agree with the view of the dissenter at the Appellate Division that both the legislative history and the plain meaning of the phrase “actually present” rule out the interpretation that it could include a person who was only constructively present at the crime scene.

The issue in this criminal case is whether aid to a robber by a person who, unseen by and unknown to the victims, is waiting outside in an automobile is a circumstance which the Legislature intended should raise what would otherwise be robbery in the third degree to the crime of aggravated robbery in the second degree.

Published on: March 10, 2014

The statute predicates such a search

by Stephen Bilkis

The issue on this appeal concerns the validity under the Fourth Amendment of a warrantless search of the defendant’s handbag and the seizure of a loaded revolver. After a hearing, the defendant’s motion to suppress the weapon was denied. Thereupon, she entered a plea of guilty to the lesser offense of attempted possession of a weapon and the Appellate Term, Second Department, affirmed the conviction. The court holds on that the motion to suppress was properly denied and, accordingly affirmed the order of the Appellate Term.

While seated in an automobile stopped at an intersection in Queens, the defendant woman was accosted by one man. The man, with whom the defendant woman had been living, entered the vehicle on the passenger side, pushed the defendant’s younger brother aside and grabbed her by the wrist. Brandishing a knife at her throat, he asked where his girlfriend found the car. The defendant woman managed to free herself from his grasp and ran from the vehicle to a nearby police car. She reported that her boyfriend had been harassing her for several days and had just menaced her with a knife. The police then returned to the criminal defendant’s automobile and arrested the man. He told the arresting officer that the defendant was his wife and that she was sick. On their way to the police station, the man told the arresting officer that the defendant had a gun in her possession.

The defendant woman preceded the arresting officer to the police station to file a complaint against her boyfriend. At the police station, the arresting officer confronted her and asked for her handbag, which she surrendered to him. The arresting officer then searched the handbag and found a loaded .22 caliber revolver. Upon showing the revolver to the defendant, she admitted not having a permit for it. Thereupon, she was arrested and charged with possession of a dangerous weapon. It is conceded that when the handbag was searched and the weapon seized, the defendant was not under arrest and the officer did not have a search warrant. Nor is it contended that the defendant consented to the search.

Published on: March 9, 2014

Sentencing and Commitment Order

by Stephen Bilkis

Petitioner commenced a proceeding requesting that the Court vacate the five year post-release supervision (“PRS”) period added to his sentence by the respondent. Petitioner argues that the neither the sentencing minutes nor the Sentencing and Commitment Order include, as part of petitioner’s sentence, a five year PRS term and therefore respondent’s administrative imposition of the five year PRS sentence is invalid.

A Queens County Criminal lawyer said that Petitioner was convicted of two counts of Second Degree Robbery and Attempted Grand larceny in the 2nd degree. Thereafter, the Court sentenced the petitioner to two five-year determinate terms of incarceration for the robbery conviction and a three to six year term on the attempted grand larceny conviction.

Notwithstanding the sentence as set forth in the sentencing minutes of the hearing, in the preparation of the Sentence and Commitment Order, the sentence for the attempted grand larceny conviction was set forth as a two and a third to seven year sentence. Petitioner brought a motion pursuant to CPL §440.20 alleging, among other things, that the sentence on the grand larceny conviction was illegal and had to be corrected.

Published on: March 7, 2014

The police officer testified

by Stephen Bilkis

An offender was charged with one count of criminal sale of a controlled substance in the third degree, one count of criminal possession of a controlled substance in the fourth degree and one count of criminal possession of a controlled substance in the third degree. A hearing was held to determine whether probable cause existed to arrest the offender and whether cocaine alleged to have been recovered from his person is admissible at trial.

A police officer testified that he was employed as a sergeant and supervised a narcotics investigation of cocaine-dealing in the county. As part of the investigation two undercover police officers were used to make purchases of cocaine.

The primary target of the investigation was a man known to the police. Prior to the date of the arrest, approximately five purchases of cocaine had been made by the undercover police officers. The first purchase of cocaine was made by the first undercover police officer directly from the man. The balance of the purchases thereafter was made by the second undercover police officer and involved other individuals assisting the man. The said other individuals acted in various role such as lookouts, distributor of the drug and handlers of currency. The police officer further stated that the man was either present or aware based on phone communications of each of the narcotics transactions.