New York Criminal Lawyer Blog

Published on: August 14, 2013

The complaint is dismissed with leave to the complainant to continue the action

by Stephen Bilkis

A man was charged in a felony complaint with grand larceny in the fourth degree and related charges stemming from an incident occurred. The complaint was filed in the criminal court and the man was subsequently arraigned. He was then released on his own recognizance at arraignment and the man’s case was postponed to an all purpose part. Subsequently, the case was again postponed for grand jury action and the complainant was not ready to proceed. The court then marked the case for final reduction of charges for grand jury action or for a hearing, and adjourned the case. Consequently, no grand jury action had occurred for the reason that the complainant was not prepared to reduce the charges or proceed to a hearing. Sources revealed that there is no good explanation was offered to excuse the lack of progress on the man’s case. As a result, the court dismissed the complaint against the man.

Based on records, a felony complaint is a limited purpose or transitional accusatory tool which serves as the basis for initiating a criminal action but not as a basis for prosecution of the charges. In addition, a local criminal court may dismiss a facially insufficient complaint at arraignment, may arraign an offender and issue a securing order on a complaint, may reduce a complaint, conduct a hearing and take appropriate action upon the completion of a proceeding and may issue an order to determine the offender’s fitness to proceed.

In the context, the offender’s right for a quick hearing becomes a critical component in the criminal prosecution because it is the only way available to an offender to test the quality of the case.

Published on: August 14, 2013

The Court has inadvertently abrogated to the parties a function that is exclusively within the province of the Court.

by Stephen Bilkis

In this Sex abuse case, Defendant pled guilty before the Court in violating Penal Law Section 130.60, Sexual Abuse in the Second Degree, a class “A” misdemeanor, with a promised sentence of one-year incarceration.

A Nassau County Criminal lawyer said that the case was adjourned for a sex offender risk determination pursuant to the Sex Offender Registration Act (“SORA”). Thereafter, the District Attorney advised this Court that a stipulation had been entered into with the defendant’s attorney providing for the offender to be classified as a “level two” sex offender, despite the defendant’s prior record, which included a previous felony conviction for a sex crime offense. Albeit erroneously, the Court agreed to honor the stipulation of the parties, and thereby made a risk-level determination that the defendant be classified a level two. The defendant was released from custody. The Court was not provided with a recommendation from the Board of Examiners until prior to the People’s application herein. The Court was not therefore given the opportunity, prior to the defendant’s discharge into the community, to review the Board’s recommendations that the defendant be deemed a level three sexually violent predator. The People made the instant application to revisit this Court’s classification, more than four months after the Court’s determination. The Court adjourned the matter for responsive papers from the defendant’s attorney and for oral argument. On that date, the matter was deemed submitted and set down for Court decision.

Since its effective date, there has been a significant body of case law devoted to the constitutional and procedural implications of SORA.

Published on: August 14, 2013

The People offered the testimony two witnesses; two Police Officers

by Stephen Bilkis

A Kings Marijuana Possession Lawyer said that, defendant is charged with Attempted Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 110/220.03), and Criminal Possession of Marijuana in the Fifth Degree, both Class B Misdemeanors, as well as Unlawful Possession of Marijuana (PL Sec. 221.05), a violation.of

A Kings Criminal Lawyer said that, at the hearing, the People offered the testimony two witnesses; two Police Officers. The Defense offered no testimony, but did place into evidence two photographs of the location where Defendant was arrested. The Police Officer testified that he is assigned to the 77 Precinct. He has made approximately 50 arrests for criminal drug possession of marijuana in his four year career with the New York City Police Department, and has received training in the identification of marijuana crime possession.

A Kings Drug Possession Lawyer said that, on June 25, 2011, he was working in uniform. While driving eastbound on St John’s Place, Brooklyn, New York, “a call came over the radio involving three male blacks smoking marijuana.” That call was received “approximately 30 minutes prior” to the arrest of Defendant. At approximately 7:20 PM, the said Police Officer arrived at the location to which he was allegedly directed by the call, 417 St. John’s Place, Brooklyn, NY. The Officer testified that “at this point, we proceeded to go over there. We observed two defendants in possession of a marijuana cigarette. There was a very strong smell at this point. We went over to stop the defendant. Once we made eye contact, he flicked the marijuana cigarette over his right shoulder.” The Officer then identified Defendant as the person who “flicked” the marijuana away. He testified that he recovered the marijuana from “the ground where the defendant threw it.”

Published on: August 13, 2013

Due process mandates that the State must bear the burden of proof

by Stephen Bilkis

Sometime in August 1998, the defendant was released from state prison after serving a three year sentence following his conviction on October 25, 1995 to sexual abuse in the first degree. The defendant, who was a Cadet Leader of an eight year old boy, pled guilty to fondling the boy’s penis while staying overnight at the boy’s home. The court must now make a risk assessment determination pursuant to the Sex Offender Registration Act (SORA).

A Nassau County Criminal lawyer said that the Board of Examiners of Sex Offenders has recommended to the court that the defendant be assessed a risk level two. This recommendation was based on the Board’s use of its objective risk assessment instrument which assigns a numerical value to the existence of certain risk factors and totals the numerical points to arrive at the offender’s presumptive risk level. The Board found that the defendant’s total risk factor score was 100 points. This score, being more than 70 points but less than 110 points, falls within the numerical parameters set forth for a presumptive risk level two category. A level two designation indicates that the risk of repeat offense is moderate.

After receiving a risk assessment recommendation from the Board, the sentencing court must make a final judicial determination with respect to the level of notification. The phrase “sentencing court” is not defined within the Act. Other States have held that the phrase “sentencing court” refers to the forum that had jurisdiction over the case, as opposed to the specific judge. Although this State has not set forth a definition in statute or case law for the phrase “sentencing court,” it has been held that a judge is not “the court” as a “court” is defined as an organized body with defined powers, meeting at certain times and places for the hearing and decisions of causes and other matters brought before it

Published on: August 12, 2013

The People consented to an adjournment not assuming prosecution of the matter i

by Stephen Bilkis

On 8 February 1991, an altercation occurred between the defendant and her landlord at the latter’s house where both parties lived. On that date, defendant’s landlord was under arrest by the police and charged in a felony complaint with assaulting the defendant. At her arraignment, defendant’s landlord was assigned Legal Aid counsel and released on her own recognizance. The case was adjourned for Grand Jury action. Shortly thereafter, defendant’s landlord went to the New York City Criminal Court’s Summons Part at 346 Broadway in New York County where a clerk prepared a misdemeanor complaint on her behalf charging defendant with the crimes of Assault in the third degree (Penal Law § 120.00(1)), Criminal Mischief in the fourth degree (PL § 145.00(1)), Menacing (PL § 120.15) and Harassment as a violation (PL § 240.25(5))–all of which was allegedly based on the same February 8th incident for which defendant’s landlord herself had been previously charged.

Next, defendant’s landlord appeared before a judge of the Criminal Court in Kings County, swore to the truth of her complaint and received a summons to serve on defendant to secure her appearance in this Court. The judge who issued the summons for the defendant was unaware that defendant’s landlord had already been arrested for the very same conduct of which she accused defendant. Note that the summons clerk’s intake sheet merely indicates that defendant’s landlord was referred to the summons part by her attorney and that she refused mediation.

The defendant appeared in court with her attorney after having been served with summons and was arraigned. Defendant’s landlord and her attorney were present at the defendant’s arraignment. At arraignment, the court was advised that defendant’s landlord has been indicted by a Kings County grand jury for Assault in the second degree and Criminal Possession of a Weapon in the fourth degree for allegedly assaulting the defendant on 8 February 1991. Since this was the first time the District Attorney’s Office had an opportunity to review the summons initiated case in light of the pending indictment, the court inquired if the People were going to assume prosecution of the defendant. Counsel for defendant’s landlord submitted a motion and affirmation requesting that the District Attorney’s Office not be permitted to dismiss this prosecution and for an adjournment to allow her to move in Supreme Court for the appointment of a special prosecutor.

Published on: August 12, 2013

The court concludes that it is without authority to impose any sentence

by Stephen Bilkis

A man stands convicted from criminal possession of a controlled substance in the first degree, a class A-I felony. In that, he knowingly and unlawfully possessed one or more preparations, compounds, mixtures or substances containing a narcotic drug, namely, cocaine, and said preparations, compounds, mixtures or substances were of an aggregate weight of four ounces or more. In particular, the man was in possession of over five ounces of crack-cocaine.

Subsequently, the man was sentenced to an indeterminate period of imprisonment of fifteen years to life.

The man then filed a motion on notice for an order vacating his sentence. He additionally requests the court to reduce his conviction and to re-sentence him as a predicate violence felony offender IV to a determinate sentence of eight years’ imprisonment with five years’ post release supervision.

Published on: August 12, 2013

The error was compounded when the prosecutor was permitted to argue on summation that the jury

by Stephen Bilkis

The defendant contested that the admission of evidence of his prior drug activity was error. The defendant was arrested after he allegedly sold two packets of heroin to an undercover police officer in August 1990. Upon his arrest, 10 additional packets of heroin were found on his person. The prosecution presented evidence on its direct case of an incident involving the defendant three months earlier. A police officer testified that he observed the defendant on a date in May 1990 standing in the doorway of an abandoned building with an unidentified male. The defendant had a number of ‘tins” in one hand, which he appeared to be counting, and money in his other hand. Upon the officer’s approach, the defendant ran through the building and was subsequently arrested. The officer testified that he recovered one “tin”, and it appeared to contain marijuana, although no proof was offered that it was in fact cocaine. The complainant contends that the evidence was admissible, purportedly for the limited purpose of proving the defendant’s intent to sell the 10 packets of heroin which were found on his person when he was arrested in August 1990.

As a general rule, evidence of similar uncharged crimes is inadmissible because the jury may convict the defendant because of his predisposition to criminal conduct. Such evidence may be received if it helps to establish some element of the crime under consideration or is relevant because of some recognized exception to the general rule. Evidence of a prior criminal sale of narcotics may be admissible under some circumstances to establish criminal intent, provided its probative value outweighs its prejudicial effect. However, evidence of prior criminal acts to prove intent is often unnecessary, and therefore should be precluded even though marginally relevant, where intent may be easily inferred from the commission of the act itself. It may be admitted to prove intent, for example, when the evidence falls short of demonstrating that the defendant acted with a particular state of mind, and where proof of a prior act is relevant to that issue. Where the act itself is equivocal, and the transaction would not be criminal unless accompanied by some guilty knowledge, evidence of prior uncharged crimes is more likely to be admissible to create an inference of guilty knowledge.

The testimony here that the defendant, on an occasion three months prior to the crime, was observed in possession of money and a “tin” of what may or may not have been cocaine, was inadmissible, and its introduction was an invitation to the jury to speculate that the defendant had previously sold drugs. This evidence was irrelevant. It was of no probative value on the issue of the defendant’s intent, and only served to establish his criminal propensities. The court erred in allowing its admission and in instructing the jury that it could be considered on the issue of intent to sell. The error was compounded when the prosecutor was permitted to argue on summation that the jury could rely on the incident in May to resolve any reasonable doubt that the defendant intended to sell the additional packets of heroin in August. The error was not harmless, the order was reversed.

Published on: August 12, 2013

Respondent was advised that the court would make a final determination

by Stephen Bilkis

In June 1998, respondent pleaded guilty in the Southern District of New York to an information charging one count of computer transmission of material involving sexual exploitation of minors. That charge arose from allegations that respondent had transmitted via the Internet three photographs of juveniles engaged in sex abuse explicit conduct. Respondent was sentenced to home detention for a period of 15 months and five years’ probation, and was directed to undergo mental health treatment during the entire term of his probation.

A Nassau County Criminal lawyer said that the Board informed respondent that since he had been convicted of a sex crime in another jurisdiction and resides in New York State, he may be required to register as a sex offender under the provisions of the Sex Offender Registration Act. The letter invited respondent to submit any materials that he wished the Board to consider in making their determination.

In a letter to the Board, respondent’s counsel argued that respondent should not be required to register as a sex offender because the Federal crime of which respondent was convicted does not contain all of the essential elements of any New York State sex offense. Specifically, respondent contended that whereas the Federal crime requires that a defendant transmit sexually explicit images of an individual under the age of 18, the analogous State statutes criminalizing such prostitution conduct apply only where the images are of children less than 16 years old. Thus, respondent argued, under the strict statutory construction rules developed by the Court of Appeals for using out-of-State convictions to adjudicate defendants as prior felony offenders, respondent’s Federal conviction does not qualify as a sex offense under SORA’s definition of that term.

Published on: August 11, 2013

Both defendants moved to exclude any evidence of prior convictions of the defendants

by Stephen Bilkis

In a criminal case, the chief point urged on appeal by defendant is that the court had previously accepted a plea of guilty to the lesser crime of attempted criminal possession of a dangerous drug in the fourth degree, a Class E felony, to cover the entire indictment; that thereafter, the court unilaterally set aside that plea and directed a trial upon which the defendants were convicted of the Class C felony for which they were indicted and for which they have now been sentenced. In essence this is a claim of double jeopardy.

A Bronx County Criminal attorney said that, in court’s view, the fair meaning of the proceedings that took place at the time of the vacating of the plea to the Class E felony was that the defendant applied to withdraw his plea of guilty and the court granted that application, and this was the understanding of all at the time.

While the court are here discussing the defendant, some light is cast on the matter by the proceedings with respect to the co-defendant whose case is in almost all respects identical with the case; most of the proceedings were joint proceedings, including the original plea and the trial. The only difference is that second case’s attorney explicitly moved to withdraw the plea in so many words while the defendant in the first case’s attorney did not use those precise words. But the entire proceedings make it clear that that is what the defendant was doing.

Published on: August 11, 2013

There is an element of fortuitousness here

by Stephen Bilkis

This is a motion by the complainants to reargue a prior decision of the County Court suppressing evidence. The complainants contend that the Court of Appeals compels the conclusion that, contrary to the prior holding of the County Court, none of the three named defendants had standing to contest the seizure of the contraband herein and that, as a result, their suppression motions should have been denied.

The threshold question is whether the re-argument motion, made more than thirty days after entry of the orders granting suppression, is time-barred. The defendant contends that it is.

It is ordinarily true that a motion to reargue may not be made beyond the time within which to appeal from the prior order. This is so because re-argument may not be used to extend the time in which to appeal or to revive a right to appeal which has been extinguished. Where, however, the prior order is still open for review by an appellate court, a motion for re-argument will lie, especially when based upon an intervening change in controlling law.