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Published on: August 12, 2013

New York Court Discusses Admissibility of Lab Report as Evidence

by Stephen Bilkis

A case was filed against a 15 year old boy for allegedly handing another minor a glassine envelope which apparently contained heroin. Penal Law 220.03 and 220.39 under this court’s jurisdiction provides that such act would constitute a drug crime if committed by an adult. The defendant’s counsel moved that the evidence which points to the minor be suppressed for not being seized under circumstances allowed by law. The court denied the petition and insisted that the seizure of heroin from his jacket was executed after taking into consideration the constitutional safeguards granted by law to each and every person. The counsel of the petitioner offered as evidence the police laboratory report which provides the analysis of the substance seized from the accused. The defendant’s counsel contended that such a report cannot be considered by the court unless the chemist who prepared the report appears in court for the purpose of cross examination.

The court decided contrary to the respondent’s assertion, arguing that the admissibility of an official police laboratory report with the absence of cross examination was an exception to the hearsay rule which provides that no statement of any person shall be admissible in court unless such person concerned attests to its authenticity and accuracy. The court argued further that according to established jurisprudence in criminal law, the hearsay rule admits certain exceptions. Among these are the general business document clause as provided in CPLR4518(a) and the ones provided in CPLR4518(c) and CPLR4520 which provide respectively that a record certified by an employee of a department or bureau of a municipal corporation and certificate of a public officer are not within the ambit of prohibitions as mandated by the hearsay rule. The court cited several case laws, mostly concerning marijuana possession, crack possession, LSD possession, heroin possession and ecstacy possession, explaining the rationale behind the exceptions. The court in these cases asserted the presumption of regularity that is accorded to documents released by public officials in the regular course of their employment.

Published on: August 8, 2013

NY Court Decides Motion to Amend Pursuant to CPL 100.45(3)

by Stephen Bilkis

Respondent has been charged with Grand larceny; Criminal Possession of Stolen Property; and Unauthorized Use of a Vehicle. Petitioner moved to amend the petition to include three additional charges against respondent: Petit Larceny; Possession of Burglar’s Tools; Possession of Stolen Property in the Third Degree. Respondent submitted an Answering Affirmation and Cross Application for Dismissal, and petitioner submitted a Reply Affirmation which includes a further motion to amend. All of the pleadings and proceedings had herein have been considered in reaching the court’s decision.

The first issue to be addressed in deciding this motion to amend is whether C.P.L. § 100.45(3) is applicable as contended by petitioner, or whether C.P.L. § 100.45(2) is the appropriate subsection as posited by the respondent. The former criminal subsection applies to amendment of an Information, while the latter subsection applies to amendment of a Prosecutor’s Information. Therefore, application of the appropriate subsection depends on the classification of a juvenile delinquency petition as analogous to an Information or Prosecutor’s Information, which appears to be an issue of first impression.

Published on: July 31, 2013

Defendant Raises Constitutional Issues in His Defense

by Stephen Bilkis

An appeal was made by the defendant man from a judgment of the Suffolk County Court convicting him of criminal sale of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence. It is ordered that the judgment is affirmed.

The defendant was indicted for criminal sale and criminal possession of a controlled substance in the first degree, class A-I felonies. The charges arose out of a sale of nearly nine ounces of cocaine to an undercover police officer. The defendant was permitted to plead guilty to criminal sale of a controlled substance in the second degree, a class A-II felony. He was promised a term of incarceration of five years to life. The promised sentence was imposed.

Published on: July 30, 2013

Defendant Files Appeal After Being Convicted of Criminal Possession of a Controlled Substance

by Stephen Bilkis

A man filed an appeal from a decision convicting him of criminal possession of a controlled drug in the fifth degree, upon a jury verdict, and imposing sentence.

The defendant man claims that the Supreme Court made a mistake in not dismissing the charges based upon the fact that the trial testimony of the complainant woman’s principal witness differed from the testimony which he gave before the grand jury. However, while it is proper, after a plea of guilty, to review the validity of an indictment based solely upon false testimony, where, the decision of conviction follows a proceeding, the adequacy of the evidence to convict is apparent from the record.

Published on: July 29, 2013

Defendant Appeals Robbery Conviction in New York Appellate Court

by Stephen Bilkis

This is an appeal from a judgment made by the County Court of Albany County. The defendant was convicted of two counts of robbery in the second degree.

Case Background

Published on: July 26, 2013

New York Appellate Court Addresses Issues of Credibility of Witnesses

by Stephen Bilkis

This is an Appeal by the defendant from a judgment of the Supreme Court, Kings County convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree for two counts, and criminal possession of a controlled substance, cocaine possession specifically, in the fifth degree, upon a jury verdict, and imposing sentence.

A Kings County Cocaine Possession lawyer said that the defendant’s convictions arose from his sale of two vials of crack cocaine to an undercover police officer, and his possession of 24 additional vials of crack cocaine. On appeal, he contends that the People failed to prove his guilt beyond a reasonable doubt. Viewing the evidence in the light most favorable to the People, the Court found that it was legally sufficient to establish the defendant’s guilt. The partial discrepancy between the markings on the vials and the description of the markings provided by the People’s witnesses merely presented a question of credibility. Resolution of issues of credibility, as well as the weight to be accorded to the evidence prevented is primarily questions to be determined by the jury, which saw and heard the witnesses. Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record. Upon the exercise of our factual review power, we are satisfied that the verdict is not against the weight of the evidence. No marijuana was found and no arson was charged.

Published on: July 24, 2013

Defendant Submits Application to Suppress Tangible Evidence in Search and Seizure

by Stephen Bilkis

A Suffolk County Police officer testified that on the sixth of October, he was on patrol in the Mastic/Shirley area in a marked police car without a partner. He testified that while driving westbound in the area of the Shirley Motel. He states that while he was in the parking lot he saw a Mercury pulling out of the motel parking lot. The car made a left turn and headed east on the highway.

The officer passed the Mercury and states that he saw an air freshener hanging from the rear view mirror. The officer turned around in the parking lot of the hotel and put on his lights to pull the vehicle over. The vehicle was driven by the criminal defendant.

Published on: July 20, 2013

Defendant Appeals Criminal Weapons Conviction in New York Appellate Court

by Stephen Bilkis

The defendant is appealing a judgment made by the Monroe County Court. The judgment found the defendant guilty of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree after he pled guilty to the crime.

Case Background

Published on: July 18, 2013

Defendant’s Probation was Revoked, New York Appellate Court Weighs In

by Stephen Bilkis

Two cases were brought before the court for resolution.

On the first case:

Published on: July 17, 2013

Defendant Appeals Criminal Possession of a Dangerous Drug Conviction, New York Appellate Court Affirms

by Stephen Bilkis

This is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered 3 January 1974, convicting him of criminal possession of a dangerous drug in the third and fourth degrees (two counts each), upon a jury verdict, and imposing sentence.

The court affirms judgment.