New York Criminal Lawyer Blog

Published on: August 21, 2013

The police recovered three loaded and operable firearms

by Stephen Bilkis

This is a Marijuana Possession case. Respondent is a public housing authority that provides and manages residential units such as the subject residence, the Breukelen Houses, located Brooklyn, New York. Petitioner was a tenant of apartment 3B (the apartment) at the Breukelen Houses. According to the Resident Lease Agreement, Petitioner was the sole lessee for the apartment and only authorized resident listed on her most recent affidavits of income.

A Kings County Criminal attorney said that in September 2005, Respondent charged petitioner with, among other things, non-desirability based on (a) her son’s unlawful possession of marijuana on Respondent’s property and (b) filing false income information with Respondent. The parties chose to settle the charges by signing a stipulation of probation in December 2006. Under terms of the Stipulation, petitioner agreed, inter alia, to subject her tenancy to a five-year probationary period commencing on 2007 and ending on 2012; to permanently exclude her son from residing in or visiting her at the apartment. If Petitioner failed to adhere to the conditions under the Stipulation, Respondent would be entitled to seek to terminate her tenancy for violation of probation.

Although Petitioner’s son was removed from the apartment, Respondent did not remove him from the Resident Lease Agreement, despite her request. In August 2006, petitioner was diagnosed with breast cancer. In March 2007, approximately three months after signing the Stipulation, Petitioner asked her son to return to the apartment and assist her with daily activities, such as moving around the apartment, shopping, and using the bathroom while she was undergoing chemotherapy treatment.

Published on: August 21, 2013

If the complainant acted as a private individual, there could be no suppression.

by Stephen Bilkis

A Kings Drug Possession Lawyer said that, a Spanish-speaking student at Boys’ High School in Brooklyn reported that someone had taken his calendar-type Timex wristwatch. The Dean of the school transmitted this information to the uniformed school service officer who is the complainant herein. All that the complainant had to go by was the report that the perpetrator of the theft wore a corduroy coat with a fur collar. He did see a student (the defendant) wearing a coat of that description. Without saying why, he invited the student into the Dean’s office and asked him to show him his wristwatch. The student did so. It was not the stolen watch.

A Kings Criminal Lawyer said that, the complainant testified that when the defendant’s coat was open he observed a slight bulge in a front pocket of his dungarees, with an inch or so of a brown envelope protruding from the top of the pocket. He asked the student to empty his pockets. This he did. There were three brown envelopes. Two of them contained what looked like–and turned out to be–marijuana. One was empty. There were also some pills and a pipe.

The complainant called in a police officer attached to the school, and the defendant was arrested for possession of dangerous drugs. He testified at this hearing that when the complainant stopped him he was wearing a coat that was unlike the one described by the complainant. He said that there were no envelopes showing at the top of his pocket. He charges that the seizure was illegal, and seeks suppression of the marijuana under CPL 710.20. In ruling on the motion, the court accepts the testimony of the security guard with respect to the defendant’s coat and the location of the brown envelope in the defendant’s pocket.

Published on: August 21, 2013

The question presented by the instant motion is whether a defense request for a copy of a search warrant falls within the parameters of this statute.

by Stephen Bilkis

A Kings Marijuana Possession Lawyer said that, the defendant, charged with Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law (PL) § 220.03), Criminally Using Drug Paraphernalia in the Second Degree (PL § 220.50[2]) and Unlawful Possession of Marijuana (PL § 221.05) moves to dismiss the accusatory instrument on speedy trial grounds alleging that the People failed to announce their readiness for trial within the applicable ninety day statutory period mandated by CPL 30.30(1)(b).

A Kings Drug Possession Lawyer said that, the People concede, in their Affirmation in Opposition, that their announcement of readiness for trial was not made until the ninety-first day after the filing of the accusatory instrument. They assert, nonetheless, that their announcement of readiness was timely for two reasons, namely: (1) that the defendant’s pre-conversion oral request for a copy of the search warrant underlying the defendant’s arrest, is an excludable pre-trial delay as provided in CPL 30.30[4][a] ; and (2), even if the Court would disallow the request for a copy of the search warrant as an excludable pre-trial delay, as the day on which the People would have been required to announce their readiness for trial fell on a Sunday, the General Construction Law permits a timely announcement of readiness on the following business day in the instant case, the ninety-first day which fell on a Monday.

A Kings Marijuana Possession Lawyer said that, the defendant was arrested on the aforementioned charges on November 8, 1996. The misdemeanor complaint, in relevant part, reads as follows: Deponent is informed by P.O. Brooks that deponent entered the above premises pursuant to a search warrant issued by the Judge on 11/97/96 and observed the defendant standing in a bedroom with a quantity of crack/cocaine possession and a quantity of marijuana possession on top of a dresser in open view.

Published on: August 21, 2013

The 13-year-old appellant was arrested

by Stephen Bilkis

In January 1992, the 13-year-old appellant was arrested. He was charged with acts which, if committed by an adult, would have constituted the crimes of attempted grand larceny in the third degree, attempted grand larceny in the fourth degree, criminal mischief in the third degree, and criminal mischief in the fourth degree. He was remanded to a secure facility, based upon a history of absconding from Children’s Village, a non-secure setting, several times in the prior several months, and upon his posing a serious risk of not appearing in court on the return date. At a fact-finding hearing, he admitted to having committed acts constituting two counts of criminal mischief in the fourth degree. On that date, his Law Guardian requested that the dispositional hearing be adjourned from Westchester to Brooklyn, as that was the appellant’s last county of residence. That application was joined in by the Westchester County Attorney, and the matter was transferred to Kings County for a dispositional hearing. The fact-finding order was entered thereafter.

A Kings County Criminal lawyer said that the appellant appeared in the Family Court, Kings County, seven days later, and was assigned a new Law Guardian. On that date, the presentment agency asked for continued remand for purposes of conducting a probation investigation and preparing a report, a mental health study, and an exploration of placement, and in order to ascertain the whereabouts of his parents or guardian and his status at Children’s Village. Over the Law Guardian’s objection, the court adjourned the matter for those purposes, and continued the remand because no parent or guardian was present in court, as well as because there was substantial probability that the appellant would not appear on the return date. The matter was adjourned for disposition. Family Court Act § 350.1(1) provides that in cases such as this, the dispositional hearing shall commence 10 days after entry of the fact-finding order. That statutory 10-day period expired on February 7, 1992.

On February 6, the Law Guardian moved to dismiss the petition pursuant to Family Court Act § 350.1. That motion was denied on February 10. At that time, the court noted that it had received a probation and mental health report, but that the probation department required an adjournment in order to complete the exploration of placement alternatives. The court granted the adjournment, finding special circumstances, and adjourned the case to February 19, 1992.

Published on: August 20, 2013

Contentions raised are either unpreserved for appellate review or without merit.

by Stephen Bilkis

In this criminal case, defendant appealed from a judgment of the Supreme Court, Kings County, convicting him of robbery in the third degree and grand larceny in the third degree (two counts), upon a jury verdict, and imposing sentence.

A Kings County Grand larceny lawyer said that 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 convictions of grand larceny in the third 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 convictions of grand larceny to convictions of petit larceny. There is no need to remit the matter for resentencing as the defendant has already served the maximum period to which he could have been sentenced on the convictions of petit larceny.

The Court finds unpersuasive the defendant’s contention that reversal is warranted because the trial court failed to timely notify counsel of its intention to charge robbery in the third degree as a lesser included offense under the count of the indictment charging him with robbery in the first degree. The record reveals that, following summations and prior to the charge, the court made the following statement: “I’ve already informed counsel that I intend to charge robbery three as a lesser included (sic) charge of a robbery one charge. That will be in the alternative. But I wanted that to be on the record”.

Published on: August 20, 2013

A Case Manager from Treatment Alternatives to Street Crime (TASC) conducted an alcohol and substance abuse evaluation of the defendant

by Stephen Bilkis

This is a proceeding wherein the defendant was arrested for allegedly selling a quantity of phencyclidine (PCP) to another apprehended individual, and possessing additional quantities of PCP and ketamine in the stroller occupied by his child. He was charged by this indictment, inter alia, with Criminal Possession of a Controlled Substance in the Third Degree (a Class B felony) and Endangering the Welfare of a Child (a Class A Misdemeanor).

Upon the defendant’s request for Judicial Diversion, the case was referred to the Brooklyn Treatment Court on 4 April 2011. The Judicial Diversion Program for Certain Felony Offenders (Criminal Procedure Law Article 216) grants authority to judges to determine which nonviolent defendants, whose criminal activity is the result of substance abuse or dependence, should have the opportunity to avoid a jail sentence by agreeing to complete court supervised treatment. The defendant is a predicate felon, having two prior drug felony convictions for which he served state prison time and was paroled within the past ten years. He also has two prior misdemeanor convictions for possession of controlled substances. He has no violent predicate felony convictions and no other pending felonies. Accordingly, it is undisputed that he is an “eligible defendant” for Judicial Diversion pursuant to CPL § 216.00(1).

The People consented to the defendant’s diversion into treatment only if he were willing to participate in the Drug Treatment Alternative-to-Prison (DTAP) program, which was developed by the Kings County District Attorney prior to the Judicial Diversion law to offer treatment to drug-addicted, repeat felony offenders in lieu of mandatory state prison terms. As per DTAP policy, all participants must initially be placed in long-term residential treatment facilities. The defendant declined the DTAP offer and requested the Court allow him to attend an outpatient treatment program through Judicial Diversion.

Published on: August 20, 2013

Forfeiture is the issue here

by Stephen Bilkis

This case concerns the new and rapidly developing field of the law of “forfeiture”. In this civil action, the plaintiffs seek, inter alia, to recover damages arising from an alleged fraudulent scheme to improperly obtain public funds. Simultaneous with the prosecution of criminal charges against the defendants, this civil action was commenced under CPLR article 13-A to declare the forfeiture of the proceeds of the crimes for which these defendants were indicted, and pursuant to Social Services Law § 145-b, to recover treble damages in the sum of $39,000,000 claimed to be resulting from the alleged fraud.

A Kings County Criminal Lawyer said that on appeal, the court is called upon to determine (1) whether the Supreme Court properly granted the plaintiffs’ request for the imposition of provisional remedies against certain assets of the defendants, (2) whether the imposition of such relief effectively deprived those defendants subject to criminal charges of their constitutional right to obtain paid counsel of their own choosing by virtue of the freezing of their assets, and (3) whether the court erred in directing the criminal defendants to disclose certain financial information in violation of their constitutional right against self-incrimination.

For the reasons which follow, the court concludes that affirmance is warranted as to criminal defendants and non-criminal defendants. With regard to the other criminal defendant, the court remit to the Supreme Court for further consideration under the rules set forth herein.

Published on: August 19, 2013

Defendant is brought before Gand Jury twice

by Stephen Bilkis

In this criminal case, a motion to dismiss was filed pursuant to CPL 30.30(1)(a) which requires the court to determine how the Second Department’s decision in a case law affects the calculating of the prosecutor’s speedy trial time. In October 1988, the court dismissed an indictment charging defendant with robbery in the first degree, robbery in the second degree, criminal possession of stolen property in the fifth degree, grand larceny in the fourth degree and criminal possession of a weapon in the fourth degree. The court took this action after finding that the prosecutor had obtained the indictment in a manner that violated CPL 190.75(3).

A Kings County Grand larceny Lawyer said that the prosecutor initially presented evidence establishing that defendant committed a knifepoint robbery. After hearing appropriate legal instructions, the grand jury indicted defendant on one count of robbery in the first degree. Then, before the foreperson filed the indictment, the prosecutor returned to the grand jury, directed it to reopen its deliberations, presented more evidence, and delivered new instructions on robbery in the first degree and several additional crimes. Finding that the prosecutor had no authority to reopen defendant’s case, the court concluded that the grand jury’s decision to consider additional evidence constituted a dismissal of its original vote. The court therefore held that the indictment was void because the prosecutor failed to seek judicial authorization for resubmission.

After dismissing defendant’s indictment, the court granted the People permission to re-present the case to another grand jury. The prosecutor obtained a new indictment identical to the one the court dismissed and filed it approximately 10 months after the criminal action commenced. Defendant moves to dismiss this second indictment claiming that he has been denied a speedy trial. Defendant contends that the prosecutor’s violation of the principles stated in a case, rendered his initial indictment jurisdictionally defective. Consequently, defendant maintains that all the proceedings conducted pursuant to this indictment were void and all delay associated with these proceedings must be charged against the prosecution. The People contend, on the other hand, that much of this delay is excludable.

Published on: August 19, 2013

Defendant, in his affidavit, states that he came to the United States from Jamaica in 1992

by Stephen Bilkis

This is a proceeding wherein the defendant moves to vacate his judgment of conviction pursuant to CPL § 440.10(1)(h) on the grounds that he did not knowingly and voluntarily enter his guilty plea due to his ineffective assistance of counsel. It is his contention that his attorney failed to properly advise him about the immigration consequences of pleading guilty as required by Padilla v Kentucky.

The court’s review of the moving papers, the People’s opposition, the Court file and the relevant case and statutory law, it finds that defendant’s motion should be denied for the reasons stated below.

The police observed on 11 August 2009 that the defendant was driving while talking on a cell phone in the vicinity of Remsen Avenue and Church lane, in Brooklyn. The officers pulled the defendant over. They observed that the defendant threw an object into the rear of the vehicle. The officers smelled Marijuana as they approached the defendant’s vehicles and recovered a clear Ziploc Bag of Marijuana in the backseat, which weighed in excess of eight ounces. The officers conducted a Department of Motor Vehicles computer check which revealed that the defendant’s driver’s license was suspended.

Published on: August 18, 2013

Under the penal law, a person is guilty of grand larceny in the third degree when the value of the stolen property exceeds $3,000

by Stephen Bilkis

This is an appeal from a judgment of the County Court of Chemung County, rendered December 2, 1988, upon a verdict convicting defendant of the crime of grand larceny in the fourth degree. A New York Grand Larceny Lawyer said that, in April 1988, defendant was indicted for grand larceny in the third degree. It was alleged in the indictment that during the period between January 28, 1987 and December 23, 1987, defendant stole property in excess of $3,000 from her employer, a Roofing Company. At trial, the People introduced into evidence various originals and microfilmed copies of 46 of the company’s checks which defendant had allegedly written to herself without authorization. A New York Robbery Lawyer said that, defendant, testifying on her own behalf, acknowledged that four of the checks had been written, signed and endorsed by her, but stated that they represented overtime pay authorized by her supervisor. Defendant denied either signing or endorsing the remaining 42 checks.

A New York Criminal Lawyer said that, at the close of proof, defendant requested that County Court charge the lesser included offense of petit larceny, which request was granted. Over defendant’s objection, the court also charged the lesser included offense of grand larceny in the fourth degree, of which defendant was ultimately convicted. County Court then sentenced defendant to an indeterminate term of imprisonment of 1 to 4 years and ordered restitution in the amount of $3,000. This appeal followed.

The issue in this case is whether defendant is entitled to a lesser offense of petit larceny.