New York Criminal Lawyer Blog

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.

Published on: February 11, 2014

People have provided that information to a court

by Stephen Bilkis

The defendant is charged with one count of criminal possession of a controlled substance in the seventh degree, a class A misdemeanor. Pursuant to the Criminal Court complaint, a paralegal with the Kings County District Attorney’s Office states that she is informed by a Police Officer that on or about April 19, 2009, at 7:32 P.M. in Nostrand Avenue, the defendant was in possession of crack cocaine.

The Criminal Court complaint cites the police officer’s professional training in the identification of crack cocaine, and notes that the officer has previously made arrests for the criminal cocaine possession, and is familiar with the common methods of packaging crack cocaine.

The defendant was arraigned before the Criminal County Court. At that time, the People filed a supporting deposition signed by the Police Officer, which identified the contraband seized as a glass pipe containing crack cocaine residue. The People then asked that the complaint be deemed information. The defense objected, on the grounds that in the absence of a laboratory analysis of the substance recovered, there is no reasonable or probable cause to believe that the substance involved is a controlled substance.

Published on: February 10, 2014

First and Second Department Rules

by Stephen Bilkis

The indictment charged the defendant with three counts of grand larceny in the second degree in stealing $46,500 from the estate, in stealing $16,500 from a husband and in stealing $2,500 from an attorney. The jury convicted the defendant of the third count but acquitted him of the first two counts. The Appellate Division affirmed, without opinion. The appeal is by leave of a Justice of the Appellate Division.

Larceny is committed when one wrongfully takes or withholds property from an owner thereof with intent to deprive the owner of it or appropriate it to himself or with such intent takes or withholds another’s property by common law larceny by trespassory taking. Property means money thing in action or any article, substance or thing of value and an owner is defined as a person who has a right to possession thereof superior to that of the taker or withholder. While the statute itself does not require proof that the defendant intended to deprive the specific true owner of his property, but rather requires proof only of the fact that the defendant intended to deprive another, the People in this case explicitly limited their claim on the third count to the concept that defendant stole specifically from the attorney. By reason of the order, it was claimed, $2,500 of the money held in the defendant’s attorney’s account became the property of the attorney and he became the owner of that $2,500 within the meaning of the foregoing statutes. Nothing in the order or in statute, rule or decision sustains that concept.

An understanding of the effect of the order requires review of the rights and obligations of an attorney with respect to fees and to money held in so-called special accounts. With but two exceptions the rendition of services by an attorney gives rise to nothing more than a contract claim, express or implied, by the attorney against his client. The two exceptions are the attorney’s retaining and charging liens. The first entitles the attorney to retain all papers, securities or money belonging to the client which come into his possession in the course of his professional employment until the amount of his fee is fixed by agreement or by litigation and is paid. While it is possessory, it has no bearing on this case because the attorney never had possession of the proceeds of the action and in any event never asserted such a lien. The second entitled the attorney at common law to a lien upon the judgment only, but has been expanded by statute to give a lien upon the client’s cause of action from the commencement of the action, which attaches to the judgment and the proceeds of the judgment and cannot be affected by settlement between the parties.

Published on: February 9, 2014

CPLR 1312(3)

by Stephen Bilkis

This is a motion by the plaintiff herein, the District Attorney of Queens County, pursuant to the recently enacted Article 13-A of the CPLR, entitled “Proceeds of a Crime Forfeiture”, for a preliminary injunction enjoining the defendants pending the determination of this forfeiture action, from selling, giving, transferring, pledging, mortgaging or otherwise alienating or encumbering their right, title and interest or any part thereof in certain parcels of real property located in Monroe County, Pennsylvania, which were allegedly purchased by the defendants with the “proceeds of a crime”.

A Queens County Criminal lawyer said that an eighty-four year old widow, resided alone in an apartment wherein she was being cared for by the defendant, a nurse, who was living with the co-defendant, the superintendent of the building. It appears that the defendants gained the trust and confidence of the widow, and convinced her that a third party had taken a “contract” on her life, whereby she was to be murdered for a fee. The defendants told the widow that if she would pay them the money that would go to the prospective murderer, they, in turn, would pay off the contract, thereby sparing her life. Believing this to be true, the widow wrote a series of sixteen checks to the order of defendant, in the aggregate sum of $154,500.00, which defendant deposited in her bank account. The original cancelled checks were obtained from defendant’s pocketbook at the time of her arrest, and copies of these checks were annexed to the moving papers.

It appears that the defendants employed the use of terror tactics to accomplish the coercion of the widow, in that at least on one occasion co-defendant, disguised and masked, entered the apartment posing as the would-be murderer, threatened her life in defendant’s presence, and demanded additional payments.

Published on: February 9, 2014

The offender then agreed to speak with her about the incident.

by Stephen Bilkis

At approximately 11:30 p.m., a student was shot to death. Four days later, detectives investigating the homicide were informed that an individual, arrested on an unrelated robbery, claimed to have information about the gun crime.

The individual told the detectives that he had overheard a conversation in a local candy store indicating that a man was responsible for the homicide. The criminal informant added that the said man had two good friends.

After recognizing the names, detectives secured photographs of the man’s two friends, who were suspected in prior robberies in the building where the criminal homicide occurred. Both were believed to be wanted on pending robbery complaints.

Published on: February 8, 2014

DLP and JEP fit exactly within the text of the 2009 DLRA.

by Stephen Bilkis

After committing class B felonies involving narcotics, DLP, JEP and JAP were sentenced to indeterminate prison terms under the Rockefeller Drug Laws. This law governed the sentencing of drug offenders until 2005. DLP and JEP received sentences of 2 to 6 years while JAP received a sentence of 5 to 10 years. Thereafter, they all got paroled. However, all of them also subsequently violated their parole. Thus, they were all sent back to prison.

In 2009, after the enactment of DLRA, DLP, JEP and JAP applied for a resentencing. The Supreme Court denied the applications and held that relief under the statute was not available to reincarcerated parole violators.

DLP, JEP and JAP appealed.

Published on: February 8, 2014

Section 2445 of the Penal Law

by Stephen Bilkis

In this Criminal Gun Crime action, a Motion ‘for an order granting the defendant a permission to inspect the grand jury minutes and the testimony upon which the indictment herein was founded, or in the alternative for an order dismissing the indictment against the defendant charging him with the crime of possession of a dangerous weapon as a felony, upon the grounds that the evidence before the grand jury upon which the said indictment was based was insufficient in law to warrant the finding of same’.

A Queens County Criminal Gun Crime attorney said that defendant has been indicted and charged with Possessing a Dangerous Weapon as a Felony, to wit, a pistol. The crime charged is made a felony by reason of the defendant’s prior conviction of Petit Larceny.

One morning, the defendant came into his house and he threw his pants over a chair and fell asleep. His wife, who was the first witness before the grand jury, testified that she went through his pockets for money, because he was supposed to have gotten paid, and she found the gun, which is the subject matter of the indictment in this case. She first took it, wrapped it up and put it in a drawer, but then getting nervous brought it across the hall to her sister, who also was afraid to have anything to do with it, whereupon the defendant’s wife put it on top of a closet.