New York Criminal Lawyer Blog

Published on: August 8, 2013

The officer testified that his conclusion to arrest was based on the information in the complaint

by Stephen Bilkis

The complainant was formerly employed as a sales associate in the computer department of the offender’s store. At some point, the complainant entered a transaction into the cash register for the sale of a computer, charging it to a credit card. The complainant’s employee number appears on the store’s computer detail display of the receipt and he readily admits that he is the person who conducted the sale. The complainant claims that he received a telephone order from a woman. The computer receipt includes a notation that includes the customer’s name. But, the complainant denies having made the notation. Later, the aforementioned customer complained to the store that she had not purchased the computer and had not authorized anyone else to purchase a computer using her credit card.

Around the same time, the loss prevention manager of the store was investigating the conduct of another store’s employee, with regards to the merchandise returned without original receipts and the unauthorized use of a credit card belonging to another customer. After the manager reviewed the relevant documentation with his supervisors, the store determined to have the matter reviewed by the police.

The manager met with a detective and provided him with documentation concerning the matter. During the meeting, the detective inquired about an employee number on one of the receipts, and when advised that it was the complainant’s, the detective said he would need to speak to the person and requested further information concerning the transaction, including a statement from the customer. According to the detective, the manager also told him that the complainant and another employee were working together, and that the manager had seen the complainant pick up the computer. But, the manager denies making the two statements. The detective then turned over the documentation provided by the manager to his colleague.

Published on: August 8, 2013

A plea agreement was made and entered into by the defendant

by Stephen Bilkis

On 14 February 1990 at approximately 6:15 p.m., criminal defendant and another individual acting together, was observed by a police officer selling crack coccaine to three persons. The three buyers were seen talking to the defendant and his partner and each gave a sum of money to defendant’s partner, whereupon defendant handed, in exchange for the money, a quantity of crack coccaine to each of the buyers. Arrest were made and officers recovered from inde defendant’s mouth, four small clear plastic bags containing crack and coccaine and same drug was recovered from the defendant and his partner.

A plea agreement was made and entered into by the defendant and pleasd guilty to Penal Law section 220.31 CSCS in the 5th degree. As a result, defendant was sentenced to two to four years incarceration running concurrent with one and one- third to four years incarceration for violation of probation on Kings County. Defendant was adjudicated as second felony offender at the time of his plea in this case.

At the time of the plea agreement, defendant was 22 years old with a 10th grade education. He is a citizen and native of Jamaica, West Indies and was admitted to the United States at New York City on or about 26 September 1986 as a P22. Also, counsel manifested that at the time of plea, defendant was in good physical and mental health, not under the influence of drugs and was entering the plea of his own free will after having sufficient time to discuss his case and plea with his counsel.

Published on: August 7, 2013

Since the defendant here did not possess the car, there can be no such inference.

by Stephen Bilkis

Defendant is charged by information with petit larceny, criminal possession of stolen property in the fifth degree, unauthorized use of a motor vehicle in the third degree and criminal mischief in the fourth degree, in that he was a passenger in a stolen and damaged car. Defendant has moved to dismiss the charges on the ground that the information fails to conform to the requirements of CPL Section 100.40. In particular, defendant claims that the factual portion of the information fails to establish every element of the offenses charged and the defendant’s commission thereof.

The court holds that a mere passenger does not possess a car. Therefore, the larcenyhttps://criminaldefense.1800nynylaw.com/new-york-grand-larceny-lawyer.html, possession of stolen property and criminal mischief charges must be dismissed. The information does establish that defendant used the car and therefore is sufficient as to the crimes of unauthorized use of a vehicle. The factual portion of the information, after alleging that defendant and his co-defendant lacked permission or authority to take or use the vehicle in question, reads: “Deponent further states that he observed both defendants in the above vehicle, and that the car was running and that the steering column had been broken.” There is no allegation that defendant was the driver of the car. Thus, for the purposes of this motion, it must be assumed that defendant was merely a passenger.

The first matter to be considered is what constitutes sufficient factual allegations in an information. A misdemeanor complaint–which is not an instrument on which a defendant can be prosecuted must contain evidentiary facts supporting or tending to support the charges. Those facts need only provide “reasonable cause to believe that the defendant committed the offense charged.” CPL Section 100.40(4)(b). On the other hand, an information must contain factual allegations that “establish” every element of an offense. CPL Section 100.40(1)(c). That requirement can only mean that the factual allegations in the information must constitute a prima facie case.

Published on: August 7, 2013

Pursuant to CPL § 440.20(1), a motion to set aside a sentence may be made at any time after the entry of a judgment

by Stephen Bilkis

Defendant was indicted on twelve charges, including one count of Robbery in the First Degree, PL 160.15(3); two counts of Robbery in the Second Degree, PL 160.15(1) and (2)(a); one count of Robbery in the Third Degree, PL 160.05; one count of Grand larceny in the Fourth Degree, PL 155.30(5); one count of Assault in the First Degree, PL 120.10(1); and three counts of Assault in the Second Degree, PL 120.05(1) and (2) and (6), as well as several misdemeanors, in connection with an incident, on or about May 1, 2008, in which Defendant is charged with having assaulted a livery cab driver in his vehicle, having wielded a knife, and having robbed the cabdriver.

A Bronx County Criminal Lawyer said that while the jury selection process for Defendant’s trial was underway, Defendant pleaded guilty, pursuant to a negotiated plea agreement, to one count of Robbery in the First Degree, a class B felony, to satisfy all of the charges pending against him. The Court informed Defendant that, if he adhered to certain conditions that were articulated by the Court, one of which required the Defendant to cooperate with the Department of Probation, the Court would sentence Defendant to a determinate sentence of eleven years in state prison, and five years of post-release supervision, a permanent order of protection and certain mandatory surcharges. The Court informed Defendant that “cooperate” in that context meant that Defendant could not swear to certain facts under oath in court and then deny those same facts to Probation during his pre-sentence interview. This is not burglary.

The Court also informed Defendant that, if he did not comply with the articulated conditions, the Court would then sentence Defendant to 25 years. Defendant acknowledged on the record that he understood those conditions.

Published on: August 7, 2013

The General Construction Law sets forth certain rules for the construction

by Stephen Bilkis

The defendant man charged with Criminal Possession of a Controlled Substance in the Seventh Degree, Criminally Using Drug Paraphernalia in the Second Degree and Unlawful Possession of Marijuana moves to dismiss the accusatory instrument on speedy trial grounds alleging that the complainants failed to announce their readiness for trial within the applicable ninety day statutory period mandated by Criminal Procedure Law (CPL). The complainants 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 reasons, namely 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 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 complainants 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).

The Court disagrees with both of the complainants’ contentions and, for the reasons that follow, grants the defendant’s motion to dismiss the accusatory instrument on speedy trial grounds. Robbery was not an issue.

The instant motion arises from the following facts and procedural history. The defendant was arrested on the aforementioned charges. The misdemeanor complaint, in relevant part, reads that the deponent entered the premises pursuant to a search warrant issued and observed the defendant standing in a bedroom with a quantity of crack/cocaine possession and a quantity of marijuana on top of a dresser in open view.

Published on: August 6, 2013

Defendants asserted, however, that the bonuses had been properly authorized

by Stephen Bilkis

In this criminal action, defendants are the former chief executive officer (CEO) and chief financial officer (CFO) of a publicly-held diversified manufacturing company. After a nearly six-month trial, a jury convicted defendants of 12 counts of first degree grand larceny, eight counts of first degree falsifying business records, one count of fourth degree conspiracy and one Martin Act count of securities fraud. The principal charges concerned defendants’ theft of four multimillion-dollar “bonuses” between 1999 and 2001.

A Bronx County Criminal attorney said that defendants’ convictions arose primarily out of their abuse of two loan programs: the Key Employee Loan Program (KELP) and the relocation loan program. KELP allowed defendants and other executives to borrow funds to pay taxes due upon the vesting of restricted stock. The relocation loan program covered certain moving expenses incurred when the company transferred an employee to a new geographic area. Defendants did not, however, utilize these programs for permissible purposes. Instead, they incurred debts under them that were used to finance opulent lifestyles.

Under the Plan, defendants were entitled to a base salary regardless of the company’s performance, but had the potential to earn “performance awards,” or bonuses, by exceeding certain performance goals or “hurdles.” These awards took the form of cash payments and the vesting of restricted stock.

Published on: August 5, 2013

The defendant attorney moved for a further inspection of the grand jury

by Stephen Bilkis

The defendant, an attorney, was indicted in a nine count consolidated instrument. He was the executor-attorney of the estate of his deceased law partner. Seven of the counts concerned larceny of estate property and one concerned perjury in an examination before trial in a Surrogate’s Court Proceeding to revoke letters testamentary. The remaining count, Forgery in the Second Degree, concerned a corporate client.

Following a substitution of counsel on the eve of the trial, the defendant moved to inspect the grand jury minutes and for a dismissal thereof on the grounds of insufficiency. Based on records, the court granted the motion for inspection and following such inspection denied the motion to dismiss. Robbery was not a matter. These are considered white collar crimes of a criminal nature.

Following another substitution of counsel, the defendant attorney moved for a further inspection of the grand jury minutes and for a dismissal of the indictment, claiming that the district attorney failed to provide legal instructions in the form of a charge to the grand jury recorded in minutes, thus rendering their proceedings fatally defective and upon the further basis that the grand jury was unconstitutionally empanelled by reason of the systematic exclusion of women.

Published on: August 5, 2013

Evidence is overwhelming

by Stephen Bilkis

The following two (2) cases involve the reduction of a grand larceny conviction to petit larceny and its corresponding sentence due to the insufficiency of evidence presented during trial.

On March 7, 1988, the criminal defendant in this first case was charged with robbery in the second degree, grand larceny in the second degree, reckless endangerment in the second degree, and resisting arrest. After trial, he was convicted and was sentenced to two concurrent indeterminate terms of imprisonment of 5 to 10 years on the robbery and grand larceny counts, and a concurrent definite 1 year term on the reckless endangerment count. Defendant made an appeal assailing the said decision based on the alleged insufficiency of evidence.

In a testimony made during the trial, the complainant made a rough estimate of the value of her stolen jewelry. However, complainant’s testimony that the jewelry was worth more than $1,500 was impeached by her grand jury testimony that the jewelry was worth “give or take” that sum. Also, the court found that there is insufficient evidence in the record to show how the complainant estimated the value for she was not qualified as an expert and she only gave limited testimony on how much she paid for the jewelry. Therefore, the testimony was insufficient to prove that defendant stole property that exceeded $1,500 in value.

Published on: August 5, 2013

The defendant raised two constitutional challenges to the sentence statute

by Stephen Bilkis

In this cocaine related case, defendant appeals from a judgment of the Supreme Court, Suffolk County, convicting her of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree, upon a jury verdict, and imposing sentence of two concurrent indeterminate terms of imprisonment of 19 years to life.

A Suffolk County Cocaine lawyer said that the defendant offered to sell a kilogram of cocaine to a police informant who arranged for its sale to an undercover Long Island Drug Enforcement Task Force agent. The informant traveled with the defendant and her boyfriend to the place where they picked up the cocaine and then placed it in the trunk of the car in which it was discovered by police after they were arrested. DWI was not charged. Neither petit larceny nor grand larceny were involved.

The defendant’s main contentions concern statements made by the prosecutor during summation and the court’s charge to the jury. The record clearly indicates that the prosecutor stayed within the four corners of the evidence in his summation, and that the jury, after hearing the entire charge, could gather from its language the correct rules to be applied in arriving at its decision.

Published on: August 5, 2013

The issue in this case is whether the court erred in imposing that defendant should attend a domestic violence counseling program

by Stephen Bilkis

A Kings Domestic Violence Lawyer said that in this criminal case, defendant, accused of assaulting his wife, moves to vacate as unreasonable the condition of bail imposed by the court that he attend a domestic violence counseling program.

The issue in this case is whether the court erred in imposing that defendant should attend a domestic violence counseling program as a condition for the grant of his petition for bail.

The court in deciding the case said that, in 1996, the Brooklyn Domestic Violence Court began as a pilot part to insure a more active and sensitive response to family sex violence by the judicial system. The need was great. As the New York Legislature found: “more women are hurt from being beaten than are injured in auto accidents, muggings and rapes combined” (1994 Sessions Laws, Ch. 222, Sect. 1), and case law is ripe with examples from every state of domestic violence that has escalated to murder. With this in view, the Domestic Violence Parts of Brooklyn Supreme Court have consistently directed that bailed or paroled defendants attend domestic violence counseling programs as a condition of bail.