New York Criminal Lawyer Blog

Published on: July 14, 2013

Single count of larceny is charged

by Stephen Bilkis

On 13 February 2008, the criminal defendant was convicted of grand larceny in the fourth degree, upon a jury verdict. The defendant appealed. The appeal brought up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress the identification testimony.

On appeal, the judgment was modified, on the law, and the defendant’s conviction of grand larceny in the fourth degree was reduced to petit larceny, and the sentence imposed thereon was vacated. However, since the defendant has already served the maximum permissible sentence for that crime, the matter was remitted to the trial court for sentencing to time served on the conviction for petit larceny.

First, the trial court properly denied that branch of the defendant’s omnibus motion which was to suppress the identification testimony. Indeed, the defendant sufficiently preserved his contentions for appellate review in this regard. However, the People established that the photo array was not improper, and the defendant failed to establish that the procedure was unduly suggestive. In particular, although there was conflicting evidence as to whether the first witness may have been present in the room when the second witness viewed the photo array, that evidence would not, by itself, taint the second witness’s identification testimony, absent evidence of communication between the two witnesses, which was not present. Moreover, the trail court also did not err in determining that the photos of the fillers used in the array sufficiently resembled the defendant’s photo, and that the array was not unduly suggestive. Further, there was no merit to the defendant’s contention that the fact that each witness was shown only a single array of six photos, by itself, rendered the photo array procedure improper.

Published on: July 14, 2013

The legislature accordingly considered that a minimum of 16 members of the grand jury would preside

by Stephen Bilkis

A grand jury heard evidence concerning an incident occurred. After the deliberation, they voted an indictment charging a man with the crime of criminal possession of stolen property in the second degree.

Subsequently, the district attorney re-opened the criminal proceeding. The attorney asked the jury to consider the charges of burglary, grand larceny and criminal mischief in addition to the previously count of criminal possession of stolen property.

There are no further evidence brought out at the initial and second proceeding was presented. In addition, sixteen juror members were present at the initial proceeding of the man but only 14 members attended the second proceeding out of sixteen. There are also no discussion had occurred in the first proceeding concerning the new charges. Robbery was charged.

Published on: July 13, 2013

Offense dictates the sentencing

by Stephen Bilkis

The criminal defendant appealed from his convictions of first-degree murder and second-degree criminal possession of a weapon. According to the defendant, the court erred in imposing upon him consecutive sentences because he acted with singular intent during one criminal transaction. However, recent Court of Appeals decisions reiterate that the test for determining the legality of consecutive sentences is not whether the criminal intent is one and the same in each crime but whether separate acts have been committed with the requisite criminal intent. Thus, since there was no overlap of statutory elements in the crimes committed by the defendant, the imposition of consecutive sentences was lawful.

The actus reus of the first-degree murder statute is the causing of death of two or more persons with no requirement that it be by shooting, stabbing or any other method employing a weapon, and the actus reus of second-degree criminal weapon possession is possession of a loaded operable firearm with no requirement that, in fact, it be employed in any way, much less lethally. Hence, these are separate and distinct acts.

Since for sentencing purposes a court must focus on the statutory definition of an offense, there is no merit in the defendant’s argument that the People, at trial, intertwined defendant’s intent to use his weapon unlawfully with the fatal shootings of the two victims. It is true that the People, in summation, stated that the defendant possessed a gun and intended to use that gun unlawfully and there’s no doubt about the defendant’s intent since he actually did use the gun unlawfully against two others. However, that does not help the defendant for sentencing purposes. Indeed, the defendant’s argument that the intent component of the weapon-possession charge results in a statutory overlap because the People did not establish an intent separate from the intentional, fatal shootings is precisely the rationale that the Court of Appeals rejected in one case, and most recently in another. In the first case, the Court rejected the argument that a criminal sex act (sodomy) constituted a material element of first-degree falsifying of business records where defendant asserted that the statutory definition of the latter offense included intent to conceal a crime, in this case the sodomy. Similarly, in the other case, the defendant argued that sentences imposed for his burglary and larceny convictions should run concurrently because larceny was the crime that satisfied burglary’s intent requirement. The Court agreed that defendant’s larceny was the only crime that fulfilled the “intent to commit a crime” element of burglary, and that, therefore the two acts, the entering of a dwelling for the sole purpose of stealing, and the actual taking of the property, cannot logically be considered separate and distinct acts. On appeal, the Court of Appeals disagreed. In a particularly instructive ruling, it held, instead, that the crime of burglary was completed when defendant entered each apartment with the intent to commit a crime. The ensuing larceny was a separate crime, perpetrated through defendant’s separate act of stealing property. The holding in the latter case would appear to foreclose the argument that the shootings of the victims were the only crimes that satisfy the intent-to-use-unlawfully element of the weapon possession charge and hence they are not separate and distinct acts. The criminal weapon possession offense is a possessory act, the actus reus of which is complete once the defendant has dominion and control of a weapon. Criminal weapon possession is not a necessary component of first-degree murder.

Published on: July 13, 2013

Juvenile offenders not charged as adults

by Stephen Bilkis

A criminal proceeding was scheduled for trial charging a lawyer with the crime of criminal solicitation in the fourth degree and attempted tampering with a witness in the third degree. The allegation asserts that the attorney and his client attempted to prevent the witness from testifying against the offender by engaging another person to threaten the witness who was charged with domestic violence..

Attached to the information is a sworn supporting statement from the person who threatens the witness. Subsequently, the complainant submitted an application of an order directing the unsealing of the files and records of the county’s criminal courts, the county’s district attorney’s office and the county’s police department.

The complainant seeks the unsealing of an indictment which pertains to the youthful offender adjudication of a young man who is allegedly represented by the lawyer. Later, the complainant had made a representation to the court. They contend that they are entitled to the records containing the information sought. Sex was not an issue.

Published on: July 13, 2013

3 to 6 years was the sentence

by Stephen Bilkis

A woman worked as office manager for a period of thirteen months. Over that period, she stole several checks to her employer, endorsing and depositing them in her own bank account. The stolen checks were totaled in excess of $3,000. She was consequently arrested and eventually pleaded guilty to the court charging her with grand larceny in the third degree.

Subsequently, the court sentenced the criminal woman to a term of five years probation, and later transferred the probation supervision to the city, where she then lived and worked. The woman admitted that she stopped reporting to her probation officer and also ceased making required compensation payments. Afterward, the woman was arrested again for petit larceny.

Later, the Supreme Court filed a declaration of delinquency against the woman alleging that she had violated the terms and conditions of her probationary sentence. Consequently, a bench warrant for her arrest was issued that same day.

Published on: July 13, 2013

Limited waiver of immunity is invoked

by Stephen Bilkis

Defendant was charged, in a felony complaint, inter alia, with Robbery in the first Degree and Criminal Possession of a Weapon in the Second Degree. Thereafter, upon learning that the People were about to present evidence to a grand jury, defendant gave notice of his intent to appear and testify before that body. Defendant’s attorney sent a handwritten letter to the People, confirming an earlier conversation, stating that since the People were presenting only the weapon charge, defendant requests that he be permitted to sign a waiver of immunity only as to this charge. Defense counsel also asked for a judicial ruling if the People failed to grant this request. Later, the People sent a letter to defense counsel stating that, in confirmation of an earlier conversation, it was understood that defendant did not wish to testify if only the weapon charge was presented. Accordingly, only this charge was presented to the grand jury and an indictment was voted charging defendant with Criminal Possession of a Weapon in the Third Degree.

A Kings County criminal attorney said that the People maintain that defense counsel’s letter misconstrued their initial oral conversation and that the parties had a second oral conversation after counsel’s letter where they resolved their misunderstanding. The People further contend that their letter reflected the agreement reached at this subsequent conversation. Defendant, however, does not admit that any second conversation occurred. Rather, defendant asserts that the People’s letter was written in response to their initial conversation and incorrectly stated defendant’s position.

The issue to be resolved in this case is whether a defendant is entitled, as a matter of right, to testify under a “limited” waiver of immunity 2 is subject to divergent views by nisi prius courts.

Published on: July 12, 2013

Possession of heroin and selling it.

by Stephen Bilkis

The criminal Defendant had prior dealings with a group known to be engaged in drug trafficking, specifically, heroin trafficking, and specifically raised money to purchase from an undercover agent in Boston the four kilograms of heroin at issue, which they planned to resell in New York. Defendant, who held a doctorate in pharmacology, met with the head of the criminal organization in New York, A, and later that day traveled to Boston with two other members of the organization, B and C, under assumed names, taking with them $120,000 for the undercover agent’s courier fee, as well as equipment that could be used for testing the purity of heroin. When defendant, B and C arrived in Boston, they checked into a hotel (under assumed names) and had frequent telephone contact with A, who was still in New York. A briefly visited the three men in Boston, after which he returned to New York, where he made telephone contact with the undercover agent, to whom A provided the name, location and telephone number of B, who would carry out the drug transaction. The next day, the undercover agent spoke over the telephone with B, who told the agent to wait until he switched hotels. When they did meet, B showed the agent the $120,000 courier fee, told the agent that he planned to sell the heroin in New York, and then took a sample of heroin, which was then tested for its purity level. However, B ran into a plainclothes State Trooper in the stairwell whom B suspected of being a law enforcement official, and shortly thereafter called off the deal, on the ground that the heroin was of insufficient purity. This is a felony.

Here, the evidence established, beyond a reasonable doubt, that defendant and his accomplices came dangerously close to possessing the heroin in New York, even though the heroin was rejected on the ground of inferior quality. Defendant’s attacks on the sufficiency of the evidence were unpreserved and the court declined to review them in the interest of justice. If the court were to review the claims, it would still be found that the verdict was based on legally sufficient evidence. Further, the verdict was not against the weight of the evidence. Moreover, defendant’s jurisdictional claims were rejected. Jurisdiction for both crimes was established under CPL 20.20 (1) (a), since defendant committed an element of the offenses in New York. Defendant formed the intent to possess heroin in New York, and he and his codefendants took many steps in New York towards the completion of that crime, though they did not fully amount to an attempt until the Boston actions were effected. On the conspiracy count, defendant formed the intent and the agreement in New York, as well as many overt acts, and thus the entire crime was committed in New York, not just one element. Clearly, New York also obtained jurisdiction over both crimes pursuant to CPL 20.20 (2) (b), since both the possession and conspiracy statutes were designed to prevent the occurrence of a particular effect in New York, and the conduct of defendant and his codefendants was committed with the intent that it have such an effect in New York, regardless of whether any conduct took place in New York. As provided for under CPL 20.10 (4), when conduct constituting an offense produces consequences which, though not necessarily amounting to a result or element of such offense, have a materially harmful impact upon the governmental processes or community welfare of a particular jurisdiction, or result in the defrauding of persons in such jurisdiction, such conduct and offense have a particular effect upon such jurisdiction. The court rejected, as contrary to the statutory language and logic, the interpretation of CPL 20.10 (4) advanced in the landmark case of People v Puig that the term “community welfare” applied only to CPL 20.40, the county venue statute, and not to CPL 20.20, the State jurisdiction statute. The possession of illicit drugs in New York with intent to sell them to New Yorkers does have a materially harmful impact upon the jurisdiction at bar. What’s more, the jurisdiction was established over the attempted possession count under CPL 20.20 (2) (c), there being ample evidence of an attempt to possess heroin in New York, and over the conspiracy count under CPL 20.20 (2) (d). On defendant’s remaining arguments, these were considered but rejected including those contained in his pro se supplemental brief.

New York Criminal Defense Lawyers at Stephen Bilkis & Associates are the experts you need and you can rely on when it comes to situations like the above. Contact our firm now and consult with our New York Drug Attorneys, New York Arrest Attorneys, among others. Our consultations are free of charge.

Published on: July 12, 2013

Grand Jury report was sealed

by Stephen Bilkis

On January 27, 1982, the County Court impaneled Grand Jury Panel 3 for the Second Term of 1982. It was created to investigate allegations concerning corrupt acts and criminal conduct involving governmental operations, public officials, and government employees and their associates. The Panel was discharged on October 29, 1983.

After hearing and examining the evidence concerning the misconduct, nonfeasance and neglect in public office by a particular public servant, the Grand Jury took action by voting to submit to the Court a report. The report recommended removal or disciplinary action against the identified public servant, as provided in Criminal Procedure Law. The Grand Jury did not indict the public servant named in the report, nor did it dismiss a charge before it. At the conclusion of his presentation, the Assistant District Attorney concluded the evidence was insufficient to ask the Grand Jury to consider criminal charges. None were therefore considered.

The Court ordered that the report submitted be filed as a public record. Pursuant to Criminal Procedure Law, the public servant named in the report appealed to the Appellate Division, Second Department. By order, the Appellate Division ordered the Grand Jury report sealed. The Court stated that, although the report was supported by a preponderance of the credible and legally admissible evidence presented to the Grand Jury, the legal instructions given by the Assistant District Attorney were inadequate, and the Assistant District Attorney failed to follow proper procedure with respect to the issuance of a report by the Grand Jury. Specifically, the Court held that, providing the Grand Jury with copies of the CPL (Criminal Procedure Law) article 190 pursuant to CPL is not sufficient where, as here, they (the Grand Jurors) were never given any instruction on the standard of proof to be applied in weighing the evidence. Further, an Assistant District Attorney recommended to the Grand Jury that they vote to have his office prepare a report without explaining to them their options under the statute. The proper procedure, not followed here, requires that before any report is prepared, the Grand Jury vote upon whether or not a report should be issued at all, and if so, what type of report should be prepared. Neither a weapon or sex was involved.

Published on: July 12, 2013

Woman wrongfully arrested

by Stephen Bilkis

The complainant woman seeks damages for injuries she sustained as a result of her alleged wrongful arrest by court officers employed by the State Office of Court Administration. The trial of the claim was bifurcated and the decision addresses solely the issue of liability.

The complainant woman is an attorney formerly employed by the County District Attorney’s Office. She was assigned as a felony arraignment assistant in the criminal courts building in New York. Her testimony and that elicited from two court officers on the complainant’s direct case established that on that date, she was taken into custody by the two court officers in the Arraignment Part 1 courtroom (AR-1) and subsequently arrested and charged with petit larceny and possession of stolen property. She was transported to the 84th Precinct for processing and was later returned to the courthouse and arraigned on charges of criminal possession of stolen property, petit larceny and grand larceny. The charges were presented to a grand jury in Brooklyn and the grand jury returned no indictment.

The complainant testified that on the morning of July 2, 1999 she was assigned to handle arraignments in Arraignment Part 2 courtroom (AR-2). While she was on the record in AR-2, she was approached by a woman from the courtroom helpdesk. The woman’s duties encompassed arraignments in both Arraignment Parts 1 and 2, but she worked at a desk in the AR-1 courtroom. The complainant recalled that the courtroom helpdesk handed her a file and said it was a warrant or extradition or something and then left but when she later examined the papers, only an arrest file was included, not an extradition file as she expected. After unsuccessfully attempting to contact the courtroom helpdesk by telephone, the woman walked to the AR-1 courtroom purportedly to obtain the correct papers.

Published on: July 11, 2013

Constitutional rights are waived

by Stephen Bilkis

On 20 December 1994, a certain person was shot in his apartment on Parkside Avenue, Brooklyn. On 27 December 1994, criminal defendant got arrested and charged with possession of a weapon. During his interview, the arresting officers suspected that he was involved in the 20 December 1994 shooting. Thus, the defendant was indicted for that shooting incident. Defendant then moved to suppress, as the product of his unlawful detention on an unrelated weapons charge, two guns used in the shooting and delivered to the stationhouse by his wife; to suppress the admissions made by him on the additional ground that his withdrawal from heroin, together with police conduct during his lengthy detention, coerced his admissions.

After the court determined that the police acted without probable cause or reasonable suspicion in grabbing the defendant as he walked upon a public street, placing him up against a car and conducting a search which revealed a 9mm firearm, found that two questions remained: whether the recovery of two additional guns with ammunition, brought by the defendant’s wife to the stationhouse where the defendant was detained, as sufficiently attenuated from the primary illegality and whether the defendant’s statements regarding the shooting, given some twenty-three hours following his arrest, were voluntarily made.

Here, the two guns and ammunition brought to the station house by the defendant’s wife were not sufficiently attenuated from the primary illegality and, therefore, must be suppressed.