New York Criminal Lawyer Blog

Published on: August 29, 2013

People v Asmar

by Stephen Bilkis

The rules of evidence in regards to admissibility of evidence are important to be successful in a trial. The jury should not be exposed to prejudicial material which may put the defendant in a precarious position to ensure that the trial is fair. In the People v Asmar the prosecution sought permission to adduce evidence about the defendant’s past with the complainant.

Mr. Asmar, the defendant was charged with rape, sodomy and sexual abuse. The Defendant however, stated that the sex acts between them were consensual and began taking place 2 months prior to the acts complained of. As a result the prosecution sought to introduce in their case-in-chief testimony from the complainant and her employer, to the effect that one month before the alleged rape, sodomy and sexual abuse took place, the defendant accosted the complainant, sexually touched her and made a lewd proposal. As a result to the defendant’s actions, the complainant took certain actions designed to impede the defendant’s access to the store and to herself. Authorization was sought to allow the testimony that the complaint orally reject this defendant’s advances but also that she told her employer to contact the defendant’s employer for the purpose of requesting that the defendant make deliveries at times while the complainant was not at work. Additionally, the prosecution also sought authorization to permit testimony that two week earlier the complainant asked a customer to remain in the store when the defendant appeared and that that she told her husband and another friend about the defendant’s words and acts and contends that another friend told her that defendant attempted to kiss her. It was asserted by the district attorney that the request was relevant and non-prejudicial and that it reflects the complainant’s state of mind on the issues of consent, forcible compulsion, fear and her relationship with the defendant.

A criminal court employs a two-part test for determining when evidence of other acts is admissible under the other-act rule; first, the evidence offered must be relevant to prove a material issue other than the defendant’s character, and second, the probative value of the evidence must outweigh the prejudicial effect. Evidence otherwise relevant to prove some material fact is not necessarily rendered inadmissible even though it reveals that defendant has committed another crime; however, court must balance probative value of evidence against its potential prejudice to defendant. In order for such evidence to be probative, the prosecution must establish a logical link between the evidence of the past assaults by the defendant on the complainant and the material issues of forcible compulsion and lack of consent.

Published on: August 28, 2013

Wants to withdraw guilty plea

by Stephen Bilkis

The defendant moves by way of coramnobis to vacate and set aside a judgment dated February 3rd, 1958, convicting him, on his own plea of guilty, of the crime of grand larceny in the second degree, and sentencing him to a term of not less than one and not more than two years in State Prison. A Kings Grand Larceny Lawyer said that, the defendant frames his present application on the grounds that he was not advised of his right to counsel; that he did not have the aid of counsel at the time of conviction; that he did not understand the nature and consequences of his plea and that when the judgment of conviction was vacated, he should have been granted the option to withdraw his plea of guilty.

A Kings Criminal Lawyer sad that, on April 16th, 1956, the defendant was sentenced to a term of 2 1/2 to 5 years in State Prison, on his own plea of guilty to the crime of grand larceny in the second degree. Thereafter, he made application in the nature of a writ of error coramnobis to vacate that judgment upon the ground that, prior to pleading guilty, an Assistant District Attorney promised him that his sentence would not exceed a term of 1 to 2 years if he cooperated with the authorities in certain matters; that in reliance on that promise, he did cooperate with the authorities but the promise was not kept. At a hearing held, with the consent of the District Attorney, the evidence adduced warranted the granting of his application, and on February 3rd, 1958, the defendant was resentenced to the term of which he now complains. Burglary was not involved.

A Kings Robbery Lawyer said that, the minutes of the proceedings of February 3rd, 1958, disclose that the defendant advised the Court that his former lawyer no longer represented him. That the clerk entered the defendant’s plea of guilty to grand larceny in the second degree and his pedigree was taken; that the defendant waived the two days notice of sentence; that pursuant to the provisions of sec. 480 of the Code Criminal Procedure, the defendant was asked if he had any legal cause why judgment should not be pronounced and he stated that he had no legal cause to show why the judgment of the law should not be imposed upon him; that he was thereupon sentenced to a term of not less than one and not more than two years in State Prison.

Published on: August 28, 2013

The issue in this case is whether court erred in convicting the defendant of grand larceny and robbery

by Stephen Bilkis

This is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered April 9, 1985, convicting him of robbery in the third degree, grand larceny in the third degree, reckless endangerment in the first degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. A Kings Grand Larceny Lawyer said that, on this appeal, the defendant claims that the evidence adduced at his trial did not establish his guilt of robbery in the third degree and grand larceny in the third degree.

A Kings Criminal Lawyer said that, before allowing a defendant to proceed pro se, the court must determine that the defendant’s waiver of the right to counsel is made knowingly, voluntarily, and. While there is no “rigid formula” to be followed in such an inquiry, and the approach is a flexible one, the record must demonstrate that the defendant was made “aware of the dangers and disadvantages of proceeding without counsel”. In particular, the record should show that the trial court ” adequately warned the defendant of the risks inherent in proceeding pro se, and apprised the defendant of the singular importance of the lawyer in the adversarial system of adjudication. The record should also disclose “that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” of the right to counsel.

The issue in this case is whether court erred in convicting the defendant of grand larceny and robbery, not burglary, in the third degree.

Published on: August 28, 2013

Appeals are in order in this case

by Stephen Bilkis

An appeal was made by an accused man from a judgment of the Kings County Supreme Court convicting him of 4 counts of robbery in the first degree, 2 counts of robbery in the second degree and 4 counts of grand larceny in the third degree upon a jury verdict and imposing sentence.

Judgment was modified on the law by reversing the criminal convictions of robbery in the second degree and grand larceny in the third degree and the sentences imposed thereon and the said counts are dismissed. As so modified, the judgment is affirmed.

The first two counts of the indictment charge the robbery in the first degree acting in concert with other persons actually present in the robbery scene, forcibly stole certain property and that he and the other perpetrators displayed what appeared to be a firearm and used and threatened the use of a dangerous instrument. The fifth and sixth counts, respectively, repeat the same allegations as to the complainant. The theft of the same property specifically listed in the counts charging robbery in the first degree also constitute the basis of the convictions of robbery in the second degree and grand larceny in the third degree. The evidence firmly establishes that the accused perpetrated the robbery with the assistance of three other armed accomplices. Burglary was not charged.

Published on: August 27, 2013

The victims had appeared at a scheduled sentencing date

by Stephen Bilkis

An appeal was made by the accused man as limited by his motion, from four sentences of the County Supreme Court upon his convictions of four counts of grand larceny in the second degree, upon his pleas of guilty, the sentences being concurrent indeterminate prison terms of two to six years on each count.

In four separate criminal indictments, the accused was charged with a total of 42 counts of grand larceny in the second degree, 3 counts of grand larceny in the third degree and 1 count of scheme to defraud in the second degree. He agreed to plead guilty to four counts of grand larceny in the second degree in exchange for the trial court’s promise to impose an indeterminate term of 2 1/3 to 7 years incarceration on each count, the sentences to run concurrently. In the event full restitution in the total sum of $500,000 (the losses suffered by the victims of the larcenies) was made to all the complainants named in the indictments, the court promised to impose concurrent, indeterminate prison terms of 1 1/2 to 4 1/2 years. The record does not reflect any other promises made by the court to the accused man at the time the pleas of guilty were entered. Since restitution was not complete as of the date of sentence, the court was not bound to fulfill its promise to impose the lesser sentences. Although the accused man’s counsel has recently written the court to indicate that the court-appointed receiver has now accumulated sufficient funds to make restitution to those who were promised restitution, there is still no basis for the court to rule that the sentencing court abused its discretion or exercised it in an inappropriate manner when it imposed sentence more than two years ago.

The record also indicates that, from the outset, the accused man understood that his cooperation in criminal investigations conducted by various law enforcement agencies might not lead to a reduction in the sentences which the court promised to impose at the time the pleas of guilty were entered. It is noteworthy that at the time the pleas were accepted, the court was not informed of the fact that the accused man had begun to cooperate with various law enforcement offices. The prosecutor and the Office of the United States Attorney complied with their respective promises to the accused to bring the nature and the extent of the accused man’s cooperation to the sentencing court’s attention. Neither the prosecutor’s nor the Assistant United States Attorney’s recommendation that the accused be sentenced to a term of probation, in light of the services he provided, was binding on the sentencing court, as was obviously well known to the accused who is a former attorney. Nevertheless, the court did reduce the maximum term of the promised sentence by one year and the minimum term by four months.

Published on: August 26, 2013

People v. Keindl

by Stephen Bilkis

There is a well-known rule in the area of criminal law that every count in an indictment should contain one offence. This rule is to ensure that an accused has a fair trial because he/she ought to know with certainty what the charge is. The accused person should be able to prepare a defense against the charges. In the People v Keindl this was issue along the alleged prejudice of the jury with the testimony of expert witness.

The defendant, Mr.Keindl was convicted of eight counts of sodomy in the first degree, ten counts of sex abuse in the first degree, five counts of sexual abuse in the second degree, and three counts of endangering the welfare of his stepchildren in the Supreme Court, Queens County and appealed. The defendant appealed because the twenty-six counts of the indictment alleged that the offenses occurred during designated periods of time, extending for as long as two years charged him with multiple offenses in individual counts in violation of rule against duplicity. The indictment also failed to allege with sufficient specificity the time of occurrence of the alleged offenses as required by criminal procedure law. He also asserted the counts of endangerment were invalid and that the trial court erred in admitting the testimony of Dr. Gannon, a psychiatrist, presented to explain how children, who have been repeatedly sexually abused by their stepfather, are likely to suffer psychologically. He argued that such expert testimony is inadmissible because it went to the ultimate question of whether defendant was guilty of endangering the welfare of a child which was within the sphere of the jury to decide.

The rule in the Criminal Procedure Law (CPL) states that each count of an indictment may charge one offense only. Where there is more than one offence in a count it is duplicitous. Duplicity is the joining in a single count of two or more distinct and separate offenses. It is important that an indictment is not duplicitous because it essential to the defendant’s ability to make a defense and to plead the judgment in bar of any further prosecution that he not be called upon to answer for more than one offense in each count of an indictment. The CPL requires not only that each count specify a time when or during which the crime was committed, but also specifically demands that each count of an indictment charge only one offense. The indictment is not required to state the correct date as long as it does not invalidate the indictment, and the time element does not have to be specific as long as it is within reasonable limits. The “continuous crime” theory, which would permit repeated acts of sexual molestation on young children within the family to be treated as “one continuous crime”, is not applicable to the crimes of sodomy and sexual abuse of which defendant has been convicted, since sodomy, rape and sexual abuse, as those crimes are defined in the Penal Law. The counts of sodomy and sexual abuse against the defendant which spanned periods of time extending for ten, twelve and sixteen months were so excessive on their face that they were unreasonable where victims were between eight and thirteen years old during time of offenses. Thus the prosecution was capable of discerning seasons, school holidays, birthdays or other events which could establish frame of reference to narrow time spans alleged.

Published on: August 26, 2013

On 28 January 2010, the People, the defendant, and his attorney all had an opportunity to be heard

by Stephen Bilkis

The police executed a search warrant on 15 October 2008 at approximately 6:15 p.m. In the second floor apartment of 367 East 46th Street in Kings County, the defendant’s admitted residence, he was observed alone in a bedroom from which the police recovered, inter alia, approximately 3½ ounces of a substance containing cocaine, a scale, a box of .45 caliber ammunition, and 675 dollars. The defendant was arrested and subsequently indicted for two counts of Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.16[1] and [12]) and other lesser charges. He has no predicate felony convictions and no other pending felonies.

This case was referred to the Brooklyn Treatment Court on 16 November 2009, upon the defendant’s request for judicial diversion. It is undisputed that he is an eligible defendant for judicial diversion as defined in CPL § 216.00(1). Nevertheless, the People object to his diversion into treatment, arguing that the allegations concerning his possession of a large quantity of cocaine and money, a scale, and ammunition indicate that he is a drug dealer, not a drug addict. Notably, the amount of cocaine allegedly recovered falls a mere ½ ounce short of a felony weight, which would have made the defendant ineligible for diversion absent the People’s consent. Moreover, according to the transcript of the search warrant application, the defendant sold crack cocaine to a CI from this location on two occasions.

The Court ordered an alcohol and substance abuse evaluation, over the People’s objection, to determine whether the defendant has a history of alcohol or substance abuse or dependence and whether he should be offered judicial diversion for treatment. The defendant, on 1 December 2009, was assessed by the Diversion Case Manager, an Addiction and Substance Abuse Counselor credentialed by the Office of Alcoholism and Substance Abuse Services pursuant to MHL § 19.07.

Published on: August 26, 2013

The indictment should be dismissed.

by Stephen Bilkis

The indictment contains 12 counts pertaining to two transactions (the sale of two stolen automobiles from the premises of the defendant man’s gas station). The jury found the defendant guilty of two counts of grand larceny in the first degree, of two counts of criminal buying and receiving stolen property and of two counts criminal receiving and withholding stolen property.

At the threshold, the defendant contends that he has been convicted of crimes for which he has not been indicted. Clearly, his position is untenable and his reasoning fallacious. The cases holding that convictions must be reversed where the defendants charged in common law language have been convicted of the statutory crimes enumerated in the Penal Law are not applicable. The evidence showed that the defendant was a dealer in automobiles and, consequently, the Presumption embodied which contains a mere rule of evidence, could be drawn by the jury. Of course, that inference is implicit in its verdict. However, the presumption is not the foundation underlying a statutory crime and the language contained therein does not have to appear in the indictment.

The defendant raises the point that simultaneous verdicts of guilty of grand larceny and guilty of criminal receiving and concealing the property involved in the grand larceny cannot stand. Although a thief cannot be convicted of grand larceny and criminally receiving and concealing the same stolen property, a non-accessory to the original taking may be convicted of grand larceny by false pretense, for fraudulently obtaining the proceeds from the sale of the stolen item, and of receiving and concealing said property. Conviction on both counts is not inconsistent.

Published on: August 26, 2013

The prejudicial effect of this error was exacerbated by the nature of the three assault counts

by Stephen Bilkis

In one case, a criminal defendant filed an Appeal from a judgment of the Supreme Court, Kings County, convicting him of robbery in the first degree, grand larceny in the second degree, and grand larceny in the third degree, upon a jury verdict, and imposing sentence. The court Ordered that the judgment is modified, on the law, by reducing the defendant’s conviction of grand larceny in the second degree to petit larceny, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed.

The Court agrees with the defendant’s contention that the value of the stolen jewelry was not established in accordance with Penal Law § 155.20(1), which requires proof of “the market value of the property at the time and place of the crimes, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime”.

Accordingly, his conviction for grand larceny in the second degree cannot stand. However, the evidence presented did establish the crime of petit larceny, which requires no proof of value. Accordingly, the judgment is modified to reduce his conviction of grand larceny in the second degree to petit larceny. There is no need to remit the matter for resentencing on that count as the defendant has already served the maximum period to which he could have been sentenced on the conviction of petit larceny.

Published on: August 25, 2013

The accused, for a wrong ruling, may always appeal the case for review to a higher court

by Stephen Bilkis

The complainant appeals from an order of the County Supreme Court granting the accused man’s motion to dismiss the indictment because of the prosecutor’s alleged failure in his opening statement to the jury to state a legitimate case. The appeal is dismissed.

The accused was charged in the indictment with two counts of grand larceny in the second degree. Upon the trial the prosecutor’s opening consisted of a reading of the indictment and a short statement of what he intended to prove. When he had concluded his opening, the accused moved to dismiss the indictment on the ground that the opening had not made out a case of grand larceny.

In answer, the court said that it found deficiencies in the opening and indicated that it was inclined to grant the accused man’s motion. The prosecutor then moved to be permitted to add to his opening statement. The motion was denied.