New York Criminal Lawyer Blog

Published on: February 16, 2014

Grand larceny and Insurance Fraud

by Stephen Bilkis

Defendant moves pursuant to § 440.10 of the Criminal Procedure Law for an order vacating his judgment of conviction. His conviction followed a negotiated guilty plea to one count of the Class D felony of Insurance Fraud in the Third Degree and one count of the Class E felony of Grand larceny in the Fourth Degree.

The thrust of the instant motion is a claim of ineffective assistance of counsel by Defendant’s two former attorneys.

A Queens County Criminal attorney said that defendant entered a plea of guilty to a Superior Court Information charging a single count of Insurance Fraud 3° and a single count of Grand larceny 4°, with a promise of indeterminate concurrent sentences of one to three years, and a restitution judgment in the amount of $77,199.00. Defendant was originally charged with three counts each of Insurance Fraud 3° and Grand larceny 3° relating to the submission of allegedly false automobile damage claims to certain insurers. Defendant contends that the lawyer was obligated to advise him that his plea would subject him to mandatory deportation. Defendant maintains that the lawyer’s failure to do so constituted ineffective assistance of counsel because the federal law pertaining to the immigration consequences of a plea to such crimes is, Defendant asserts, “simple and straightforward” since both crimes are allegedly deemed “aggravated felonies” within the meaning of the immigration statute, the conviction for which mandates deportation.

Published on: February 15, 2014

People v McFadden

by Stephen Bilkis

People v McFadden

Court Discusses Conviction Against the Weight of the Evidence.

The defendant was charged for a criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree in connection with a single transaction. The first trial resulted in a deadlock by the jury on two of the most serious charges. The defendant was found guilty on a partial verdict of criminal possession of a controlled substance in the seventh degree and the trial judge declared a mistrial on the other counts. A second trial was conducted on the charge of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree.

Published on: February 15, 2014

CD player was recovered from the left pocket

by Stephen Bilkis

By petition filed, a juvenile is alleged to have committed acts which, were he an adult, would constitute the crimes on criminal possession of a weapon in the third and fourth degrees and possession of pistol or revolver ammunition.

The matter arose from incident where a police officer was on patrol with his partner in an unmarked police vehicle. At approximately 8:30 p.m., the police vehicle was situated at the corner one street, an area of mixed residential and commercial structures, which was well-lit by street lights and the light coming from homes.

From the police officer’s seat on the front passenger side of the car, he observed an individual walking alone. He observed that the said individual, who apparently had not noticed their vehicle because there had been no eye contact with them. The individual, as observed by the officer, looked like going to cross the street and when he got a quarter of the way he stopped and looked down, reached for his waist to adjust something. The criminal individual then turned and returned to the corner.

Published on: February 14, 2014

Special Narcotics Grand Jury.

by Stephen Bilkis

The Grand Jury of the Special Narcotics Courts of the City of New York voted an indictment against the defendants charging them with four counts of criminal possession of a weapon in the second degree, in violation of Penal Law § 265.03 (2); four counts of criminal possession of a weapon in the third degree in violation of Penal Law § 265.02 (4); and two counts of conspiracy in the fourth degree, in violation of Penal Law § 105.10 (1). In summary, the People allege that a confidential informant contacted defendant, offering him an opportunity to rob drug dealers of a valuable supply of narcotics and/or cash. Defendant allegedly accepted the informant’s offer, and engaged the three codefendants to be part of the robbery gang.

A Queens County Drug Crime lawyer said that the defendants filed omnibus discovery motions, to which the People responded. The People also supplied the grand jury minutes to the court for in camera examination pursuant to. After examining the grand jury minutes, the court ordered the parties to submit additional memoranda of law on two jurisdictional questions. First, in light of the fact that the indictment does not contain a single narcotics-related charge, does the Grand Jury of the Special Narcotics Courts of the City of New York have subject matter jurisdiction. Second, assuming, arguendo, the Special Narcotics Grand Jury has subject matter jurisdiction, does it also have geographic jurisdiction

The CI testified in the grand jury. In summary, the informant testified that he had continuous conversations with defendant; however, his testimony is devoid of any references to where he or defendant was located when they had those telephone conversations. Furthermore, it is apparent from the grand jury minutes that none of the face-to-face meetings between the informant and the defendants occurred in Manhattan. The sole reference to Manhattan in the informant’s testimony is contained in the informant’s recitation of why he was at a certain place at a certain time, to which the witness responded: “[I]t was an operation that had been assigned to me with those four people [the defendants] that the foreman of the jury mentioned which consisted of going to an apartment in Manhattan or in the Bronx with firearms, with guns, and it was to rob sixty kilos of cocaine.”

Published on: February 14, 2014

Appellate Division, Fourth Department

by Stephen Bilkis

A Queens Grand Larceny Lawyer said that, the indictment in this case charges the defendant with the crime of grand larceny in the first degree in that he stole an automobile with the intent to deprive the lawful custodian and owner thereof. Upon appropriate waiver by the defendant of the right to trial by jury the cause was tried before me without a jury. The contention of the District Attorney is that the automobile was stolen by the defendant in Queens County, and was thereafter transported by him to the State of Indiana where, on an alarm issued by the New York City police, the defendant was taken into custody.

A Queens Criminal Lawyer said that it appears that on March 23, 1964, the owner of the automobile, as complainant, swore to a complaint charging the defendant with its theft, and that on the same day, a warrant for the arrest of the defendant was issued by a Criminal Court judge. Ten days later, in the State of Indiana, and thereafter in New York, the arresting officer interrogated the defendant with reference to the complainant’s automobile and obtained the defendant’s confessions to the stealing thereof.

A Queens Robbery Lawyer said that, the proffer of the testimony with respect to the alleged confessions made by the defendant was objected to upon the ground that they were obtained in violation of the defendant’s constitutional rights in that he was not represented by counsel.

Published on: February 14, 2014

Forgery is charged

by Stephen Bilkis

A man pleads guilty to the crime of grand larceny in the second degree and was sentenced to the state vocational institute.

After two years, the man again pleads guilty to the crime of attempted grand larceny in the second degree and was sentenced for a term of two and half to five years.

After seven years, he again pleads guilty to the crime of forgery in the second degree.

Published on: February 13, 2014

The Court has already rejected the notion

by Stephen Bilkis

In this appeal on a criminal case, the court was asked whether defendant’s entry of a guilty plea forfeited his claim that the misdemeanor information was deficient.

A New York Criminal attorney said that in January 2006, defendant was a passenger in an automobile that was stopped by a New York City police officer for having a faulty exhaust system. In the course of the traffic stop, the officer recovered what he believed were nine plastic bags of heroin together with a bag of marijuana from the vehicle’s center console, and a pipe from the glove compartment. Defendant and the other occupants of the car were arrested for criminal possession of a controlled substance in the seventh degree and unlawful possession of marijuana.

At his arraignment the next day, defendant pleaded guilty to seventh-degree possession of a controlled substance in return for a sentence of time served. The trial court informed defendant of the rights that he was waiving by entry of his plea, but did not advise defendant that he had the right to be prosecuted by misdemeanor information rather than a misdemeanor complaint. During the plea allocution, defendant admitted that he had possessed heroin.

Published on: February 12, 2014

FOIL

by Stephen Bilkis

In September 1996, a seven-count indictment was filed with the court charging defendant with two counts of murder in the second degree; one count of attempted murder in the second degree; one count of reckless endangerment in the first degree; one count of criminal possession of a weapon in the second degree; and two counts of criminal possession of a weapon in the third degree.

A Queens County Criminal attorney said that the charges stem from a shooting incident, by defendant, which resulted to death and injuries of victims. The evidence at trial established that defendant, in an attempt to shoot the complainant and witness for the prosecution, shot and killed the other. The witness testified at trial on behalf of the People.

Approximately one month after the shooting, defendant was arrested and charged with possession of a weapon during a police organized buy and bust operation. Shortly after his arrest, Defendant told the police that he had just purchased the gun. He told other detectives later that evening about defendant’s crime and how defendant had shot and killed the other victim in his presence.

Published on: February 12, 2014

Pursuant to the foregoing undisputed facts

by Stephen Bilkis

The matter at bar is a civil forfeiture proceeding wherein the plaintiff/claiming authority, Suffolk County Attorney seeks the forfeiture of a 1967 Chevrolet owned by defendant.

A Nassau County Criminal attorney said that defendant was arrested in June 2006 for driving while intoxicated. He submitted to a blood test after being transported to the hospital and it was determined that his blood alcohol level was 19%. Prior thereto, in January 1984, criminal defendant was convicted of driving while intoxicated in violation of Vehicle and Traffic Law section 1192.2.

Based upon his arrest and prior conviction, his vehicle was seized pursuant to Article IV Chapter 270 of the Suffolk County Code. In October 2006 he pled guilty to driving while intoxicated and was sentenced to sixty days incarceration.

Published on: February 12, 2014

Defendant was also sentenced for driving while intoxicated

by Stephen Bilkis

The defendant man operated a motor vehicle upon a public highway while knowing or having reason to know that his license or privilege of operating a motor vehicle in this state or his privilege of obtaining a license issued by the commissioner was suspended or revoked, and the suspension or revocation was based upon a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of the Vehicle and Traffic Law, and the defendant was operating the motor vehicle while under the influence of alcohol or drugs in violation of the Vehicle and Traffic Law.

Essentially, the defendant contends that the above emphasized portion of the second count’s factual allegations violates both the letter and spirit of Criminal Procedure Law (CPL 200.60), as interpreted by the Court of Appeals. More specifically, the defendant argues that, by this language, the jury at trial will have knowledge that the Defendant has a prior DWI arrest, in the very least, because of his refusal to submit to a chemical test. This, the defendant argues, is blatantly unfair, unquestionably prejudicial and precisely the evil CPL 200.60 was designed to outlaw. Further, by the defendant’s reckoning, the relatively recent Court of Appeals decision is expansive enough to encompass this defendant’s alleged refusal to take a chemical test as one of several conviction-related facts. Therefore, the defendant suggests, the People’s failure to include the allegedly offending phrase in the special information previously filed herein renders the indictment count legally defective and subject to dismissal. Finally, the defendant argues that presenting evidence of the defendant’s alleged refusal to take a chemical test to the Grand Jury at the same time as the panel was considering the other evidence and facts of this case created a prejudice which rendered the entire proceeding defective, thus warranting a dismissal of the second count if not the entire indictment.

The People, through the affirmation of Assistant District Attorney vigorously oppose the defendant’s motion. Fundamentally, the People’s position is that the special information procedure adopted by CPL 200.60, even as expansively interpreted by the Court of Appeals applies only to a particular defendant’s prior convictions and to those circumstances used as enhancing elements which are directly related to or result from the fact of such previous convictions. The People assert that the alleged license revocation at issue here is not conviction related, but rather is a revocation based upon an administrative proceeding involving the Commissioner of Motor Vehicles, which revocation would remain in effect regardless of whether or not the defendant was ultimately convicted. A defendant is not entitled to plead to special information regarding an administrative proceeding. A defendant is only afforded the protection of CPL for DUI conviction related facts and not for administrative ruling not founded upon that conviction. Thus, the People argue, indictment count 2 is not defective; there has been no violation of CPL 200.60.