New York Criminal Lawyer Blog

Published on: August 11, 2013

Cultural and sexual practices have changed greatly over the past twenty years

by Stephen Bilkis

Defendants are charged with acting in concert to commit the sex crime of Prostitution. Co-Defendant was originally charged with Promoting Prostitution in the third degree (P.L. 230.25[1] ) and Possession of a Gambling Device . The promoting prostitution charge was reduced to Promoting Prostitution in the fourth degree

A Nassau County Criminal lawyer, the charges as to all three defendants arise from allegations of an undercover police officer that he entered premises at the Bronx and was approached by defendants who offered and agreed to engage in sexual contact with him in exchange for money. Specifically, defendants are alleged to have agreed to allow the officer to touch the defendants’ naked breasts and buttocks and the defendants are alleged to have agreed to perform what is commonly known as “lap dancing”. This “lap dancing” consisted of sitting on and moving around on the officer’s lap. The basis for defendant’s charge of promoting prostitution is that he was observed by the undercover officer to be managing the subject premises and did in fact state that he was the manager and possessed keys to the premises.

All three defendants have moved for dismissal of the accusatory instruments on the basis of facial insufficiency. Defendants have also moved to dismiss in the interests of justice pursuant to C.P.L. 170.40. These motions have been consolidated for purposes of this decision.

Published on: August 10, 2013

The court dismisses the indictment with much regret

by Stephen Bilkis

The criminal defendants and complainants own a four- floor residential real property located at 1458 51st Street in Kings County. The defendants own a two-thirds share of the property and the complainants own a one-third share. The separate deeds that conveyed the property, however, do not specify ownership in any particular portion of the house; rather the deeds refer only to the percentage share each owns in the entirety of the property.

The defendants were charged with grand larceny in the second degree for allegedly stealing the complainants’ one-third share of the property by forging a deed resulting in the improper transfer of the complainants’ interest in the property to the defendants.

The issue presented to this court is whether the defendants may be lawfully charged with grand larceny. For the reasons that follow this court finds that they may not and the indictment must be dismissed—the law is well settled that a joint or common owner of property cannot steal from another joint or common owner of that property as the victim of the “theft” does not have a superior right of possession, a required element of larceny.

Published on: August 10, 2013

It is clear that an overt act in furtherance of the conspiracy took place in New York.

by Stephen Bilkis

A working student called someone in Florida with the hope of using $50,000 in his possession to become involved in the sale of a drug. Even if the negotiations were carried on through at least two telephone conversations and the student’s two trips to Florida in order to meet the person, the student asserted at the trial that no deal was completed. The reason is that the student was too scared.

Afterward, the student and two passengers in his car were arrested in Brooklyn and charged with criminal possession of a controlled substance, and reckless endangerment. Sources revealed that the arrest was prompted only after a chase by an unmarked police car. The student claims that the officers did not identify themselves as police and he was unaware who they were until a red flasher was placed atop the unmarked vehicle and the student’s car was blocked by a marked patrol car. He claims to have fled because he had his money in the trunk of the car and feared that the men in the unmarked car were going to rob him. The arresting officer, however, states that he identified himself as a police officer and ordered the student to stop his car, after which the student fled. There was no violence.

As the car came to a stop, thirteen glassine envelopes, later found to contain heroin, were thrown from its passenger window. The search of the vehicle revealed a trunk containing, among other things, $64,580 in cash.

Published on: August 10, 2013

The Court found no error in the charge

by Stephen Bilkis

In a Drug Crime, defendant appealed from a judgment of the Supreme Court, Kings County, convicting him of criminal possession of a controlled substance in the first degree, upon a jury verdict, and imposing sentence.

A Kings County Criminal attorney said that the defendant contends that the People failed to establish constructive possession of the cocaine found on top of his armoire in his bedroom in this purely circumstantial evidence case. Viewing the evidence in the light most favorable to the prosecution, the Court find that it was legally sufficient to establish the defendant’s guilt. The conclusion of guilt was consistent with and flowed naturally from the facts and, when viewed as a whole, the proof excluded to a moral certainty every hypothesis other than guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence.

The Court rejected defendant’s contention that his conviction was inconsistent or repugnant to the acquittal of his wife on the same charge. The evidence as to the culpability of the two was not identical since it is undisputed that she and not he gave the police permission to search the apartment. This critical fact supports the jury’s conclusion that the drugs belonged to the defendant and not his wife. Robbery was not a factor.

Published on: August 10, 2013

The harmful value of the said evidence outweighed its probative value

by Stephen Bilkis

One day, a man reached into a brown paper bag, removed a vial of crack cocaine and handed it to an undercover police officer. A few minutes later, the man was arrested and the bag was seized. Based on records, the man’s action was clearly a criminal sale. So, the man’s intent to sell was clearly inferable from his actions minutes before he was arrested.

The man was then convicted of criminal sale of a controlled substance in the third degree, two counts of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fifth degree, upon a jury verdict, and imposing sentence. But, the man filed an appeal from the said decision.

The man contends that the trial court committed reversible error when it allowed to present evidence, on its direct case, that previously he pleaded guilty of selling cocaine. The man further argues that, in spite of the trial court’s limiting instruction, the evidence improperly labeled him as a repeat cocaine seller.

Published on: August 9, 2013

No damages were stipulated and the claimant offered no proof

by Stephen Bilkis

A claim was filed by claimant against the State of New York to recover the sum of $25,000 damages alleged to have been sustained by reason of his false arrest and detention by officers of the Division of State Police of the State of New York. The claimant substantially alleges that in November 1952, the State Police “without any warrant or authority of law, wrongfully, maliciously and unlawfully arrested claimant, and compelled claimant, wrongfully and unlawfully, to go from his home to the Police Station of said Division of State Police in New York City”, where he was detained and held in custody of the State Police, and, thereafter, the claimant was discharged.

A Bronx County criminal attorney said that counsel for the claimant and counsel for the State of New York agreed that this claim be submitted to the court upon a stipulation and statement of facts which were read into the record.

From the facts stipulated, it appears that on the date of the incident, a teletype message was received at the New York State Police barracks in New York City, which message described the claimant wanted on bench warrant for grand larceny and is alleged to be at or known to family.

Published on: August 9, 2013

Appellate courts are also entrusted with the responsibility to oversee the plea bargaining process

by Stephen Bilkis

The defendant appeals from a judgment of the Supreme Court, Kings County, rendered 5 May 2008, convicting him of rape in the first degree, upon his plea of guilty and imposing sentence. The sex appeal brings up for review the denial, after a hearing, of suppression of identification testimony.

The criminal court orders the judgment reversed, on the law. Further, it orders that the plea be vacated, the identification testimony suppressed and the matter remitted to the Supreme Court, Kings County for further proceedings consistent with the case.

The defendant agreed to plead guilty to rape in the first degree in exchange for a promised determinate sentence of nine years of imprisonment. The defendant made this on the day after the Supreme Court denied suppression of identification testimony. During the course of the ensuing plea allocution, the Supreme Court advised the defendant of the terms of its sentencing commitment, and briefly explained that he would be waiving his right to appeal.

Published on: August 9, 2013

The ground or issue raised upon the motion was previously determined on the merits

by Stephen Bilkis

In this Criminal case, a Pro Se motion was filed by defendant, an inmate at the Correctional Facility, moves pursuant to CPL § 440.10(h) to vacate his judgment of conviction, following a jury trial, convicting him of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree, respectively, and sentencing him, as a second violent felony offender, to concurrent terms often years incarceration and three years post release supervision.

A Kings County Drug Crime lawyer said that this case stems from a buy and bust operation wherein one undercover, who was being observed by a ghost undercover, gave the undercover buy money. They then walked to meet • defendant, whereupon the undercover gave him the money in return for the vial which he gave to the undercover officer. Defendant was arrested shortly thereafter with thirty-four matching vials and $619, including the $10 in buy money. A chemist for the New York City Police Department tested the vial purchased by the undercover officer. It was determined that the substance in the vial was cocaine. A second chemist weighed one of the thirty-four vials recovered from defendant, and based upon the weight of that vial, projected the total weight of all the vials to be 41.6 grams. He also re-tested the substance found in the vial purchased by the undercover, and tested one of the thirty-four vials recovered from the defendant and concluded that the substance in both vials was cocaine.

On appeal, defendant argued that he had been denied his right to a fair trial because the court (1) closed the courtroom without a showing that an open courtroom would present a particularized risk to the undercover officers or their investigations; and (2) improperly responded to the jury’s request for a readback of the testimony.

Published on: August 9, 2013

he officers also recovered from the man a $20 bill of prerecorded money

by Stephen Bilkis

A man made an appeal from a judgment convicting him of murder in the second degree and criminal possession of a controlled substance in the fourth degree.

The court found that it was legally sufficient to establish the man’s guilt of murder in the second degree. Moreover, the court is also satisfied that the decision of guilt on that count was not against the weight of the evidence.

Based on records, the prosecution did not present legally sufficient evidence to support the conviction on the charge of criminal possession of a controlled substance in the fourth degree. So, the court therefore vacates the sentence on the said count and the sentence imposed thereon.

Published on: August 8, 2013

The court finds that the alleged conduct is sufficient to substantiate the charges of petit larceny

by Stephen Bilkis

Defendant was arrested in January 2002 and charged with four counts of petit larceny. On said date, defendant was arraigned and pleaded not guilty. After a discussion with counsel, the court granted defendant leave to serve an omnibus motion.

According to a Bronx County Criminal lawyer, in his omnibus motion, defendant moves for, among other things, an order dismissing the information. Specifically, the defendant contends that the information does not meet the requirements of CPL 100.40 and is thus facially insufficient. The motion was not served and filed until April 2002.

The factual part of the information alleges in substance that defendant made application for and attended the Westchester County Master/Special Electrician’s Licensing Examination on several dates. Further, that following his arrival and while present to purportedly take the examination on said dates, defendant removed several pages from the test booklet, secreted them on his person, and then departed from the examination location. Lastly, that defendant’s conduct was all without the permission or consent of the owner.