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Published on: October 2, 2012

Court Discusses Constitutionality of DUI Checkpoints

by Stephen Bilkis

The defendant in this case was charged with a criminal violation as regards vehicle and traffic law. The police officer involved in this case was assigned to a DWI checkpoint. In accordance with the procedures that are required, every vehicle was stopped and every driver was asked if he or she had been drinking. If the driver answered affirmatively, he or she was asked to submit to a test.

The defendant entered the checkpoint area and in response to the officer’s question indicated that he had been drinking. The defendant exhibited the classic signs of intoxication, slurred speech, bloodshot watery eyes, an odor of alcohol and unsteadiness on his feet. The defendant agreed to submit to the test and the results indicated alcohol content. The defendant was arrested and taken to the precinct. The officer told the defendant that he would be given an examination and that if his blood alcohol content registered a lesser percentage, he would be released; that if he refused to submit to the test, his license would be revoked; and if the results would be unfavorable for him, his license would be suspended. The test was conducted two hours after the arrest

Published on: September 30, 2012

New York Court Discusses Exclusionary Rule in Drug Possession Case

by Stephen Bilkis

On April 5, 2000 at around five in the evening, a Johnson City Police Department Officer got a call from a confidential informant who was well known to the officer. He had provided reliable information in the past that had proven valuable in the prosecution of several cases that were both misdemeanors and felonies.

The informant told the police officer that a black male who was known by the street name of “Rabbit” was on his way to a third floor apartment at 20 Willow Street to sell cocaine. The informant stated that Rabbit drove a reddish-brown Volvo. The officer and his partner went to 20 Willow Street which was just down the street from the Police Department at 42 Willow Street. At around five in the evening, they got another call from the informant who stated that Rabbit did not get off work until six and that he would go there from work.

Published on: September 29, 2012

Defendant Appeals Drug Charges Based on Improper Interrogation by Police

by Stephen Bilkis

This case involves an appeal from a judgment of a trial court convicting a 44-year old New Yorker upon his plea of guilty of the crime of criminal possession of heroin and cocaine. According to sources, police officers arrested the defendant while seated in an automobile pursuant to a parole violation arrest warrant and a bench warrant. Found in the defendant’s vehicle were a pistol, ammunition and a hypodermic needle. Taken from the defendant’s person were glassine envelopes containing heroin and cocaine. A search of the defendant’s apartment resulted in the seizure of additional drugs and drug paraphernalia.

Following indictment on various weapons and charges on drug crimes, the defendant moved to suppress the confession he made to the police officers after his arrest and the evidence seized from his person and his apartment. The trial court suppressed the evidence taken from the apartment but denied the motion in all other respects. The defendant also moved for the dismissal of his drug possession charge on the ground that the evidence before the grand jury was insufficient to establish the offense. The motion was denied by the trial court. Thereafter, the defendant pleaded guilty to one charge in full satisfaction of all charges and received a bargained-for indeterminate sentence of 4 to 8 years’ imprisonment. His appeal then followed.

Published on: September 27, 2012

Defendant Contends He has Transactional Immunity from Grand Jury Questioning in Other Case

by Stephen Bilkis

A 45-year old man was charged in a single-count indictment with selling six grams of cocaine to a state police undercover officer. The man applied for a writ of prohibition on the ground that the prosecution was barred because he had automatically received transactional immunity by being compelled to testify as a witness before a grand jury in connection with the investigation of an unrelated homicide.

The petitioner was interrogated before the Grand Jury concerning a confrontation that he had with the homicide victim. The petitioner related that he has previously used the man as an intermediary to buy cocaine in quantities of one eighth to one quarter of an ounce and that, on the date in question, the man had accused him of “going over his head on a drug buy” by dealing directly with the drug supplier. The petitioner also admitted that before the date of their confrontation he would reward the man for obtaining cocaine for him by giving him a portion of the purchased drugs and that the man had, before that date, frequently visited petitioner to obtain drugs. However, prior to the argument, the petitioner had told Shills not to approach him for drugs because he had another person in “the business end of the drugs.”

Published on: September 26, 2012

Defendant Files Motion to Dismiss Manslaughter Charge Based on Lack of Evidence

by Stephen Bilkis

The defendant was charged in this case for manslaughter which also means doing certain acts that led to the death of another person. The court also charged the defendant for drug possession. According to the accounts of police investigation, the defendant was guilty of heroin possession and selling of illegal substance. The victim died because the victim injected heroin into his body. The heroin and drug paraphernalia came from the defendant. The defendant knew that a large dose of heroin can be dangerous and fatal.

Published on: September 24, 2012

Defendant Appeals Admissibility of Post Conviction Witness Testimony

by Stephen Bilkis

When courts deal with witnesses and their testimony, sometimes-unexpected things happen. When they do, it is up to the Supreme Court to determine what testimony can cause a reversal of the verdict and demand a new trial. The Supreme Court has the job of determining matters of law. They are not there to try the cases that are presented to them. They only rule on the matters of law contained within the cases that they get. Their job is to uphold a conviction of a trial court or to overturn it. They cannot find a defendant guilty or not guilty.

In the case at hand, in a pretrial hearing, the state made the defense aware that they intended to produce a witness at trial who through testimony would offer proof of some uncharged crimes that could be attributed to the defendant. The testimony disclosed that the witness to a homicide was working in a restaurant four years after the crime when the defendant came in.

Published on: September 23, 2012

New York Appellate Court Discusses Conspiracy Law in Drug Case

by Stephen Bilkis

A New York court heard a case on June 20, 2003 relating to the conspiracy to sell drugs in a housing project. The court dismissed the first count of the indictment charging a conspiracy in the first degree. The state moved to reargue the portion of the court’s June 20, 2003 decision. The state submitted a memorandum that detailed the 66 counts of sale of a controlled substance within 1,000 feet of a school per the court’s direction.

The Supreme Court looked first at the background of this first count on the indictment. The grand jury was presented with a case to establish the existence of what is commonly known as a “wheel conspiracy” to sell drugs. The objective was to sell drugs in a public housing project in Brooklyn. While some of the members of the conspiracy were juveniles, none of the juveniles were responsible for any of the class A felonies that were charged. The juveniles were used as front line contacts. When an undercover police officer requested an amount of drugs that the juvenile could not produce, he was introduced to one of the codefendants, Warren. The transaction which was a felony but not class A was completed. Several months later the undercover officer arranged to meet with Mr. Warren and this time a class A felony drug transaction occurred. Following this initial transaction, the undercover officer transacted three additional class A felony drug purchases from Mr. Warren.

Published on: September 22, 2012

Supreme Court Discusses Resentencing Guidelines in Drug Felony Cases

by Stephen Bilkis

The Supreme Court is often faced with evaluating the requests of offenders who are attempting to reduce their sentences in prison. This is especially true as it relates to indeterminate sentences. Indeterminate sentences are those sentences that have no definite length or end date. The offender is given certain criteria that he or she must meet before being considered for parole. Until they meet the criteria, they stay in prison no matter how long it takes. Many of these offenders spend this time applying to the court to reevaluate their sentence and give them a determinate sentence instead.

The criteria for resentencing on a class A-II drug felony can be more restrictive than the criteria for resentencing under CPL §440.46(1). To be eligible for resentencing under this category, the offender must still have a minimum of three years left to serve on that sentence. The legislature apparently was attempting to prevent resentencing the inmate who was already on parole at the time that they make the request by applying this three-year limitation.

Published on: September 21, 2012

Defendant Questions Legal Sufficiency of Evidence at Trial

by Stephen Bilkis

The defendant was arrested after selling approximately two ounces of cocaine to a confidential police informant in the City of Cortland. He was indicted and found guilty after a jury trial of one count of criminal sale of a controlled substance. County Court sentenced him, as a second violent felony offender, to a prison term of 14 years followed by five years of post-release supervision and directed him to pay restitution of $2,400 to the Cortland County Drug Task Force for the buy money used in the undercover operation.

Initially, the records show that the defendant’s challenge to the legal sufficiency of the evidence presented at trial is not preserved because he failed to move for a trial order of dismissal with sufficient particularity. Nevertheless, as defendant also argues that the verdict is against the weight of the evidence, it is necessary to evaluate whether the elements of the crimes charged were sufficiently proven at trial.

Published on: September 20, 2012

Defendant Contends That Current Sentence for Felonious Drug Possession is Erroneous

by Stephen Bilkis

In 1962, a defendant was sentenced by a New York City Judge as a second felony offender for a crime to which the defendant had not pleaded guilty. The basis of this motion is that the defendant declares that the present sentence, as it now stands, is erroneous, and therefore, the court issue an order for the purpose of correcting the record.

According to reports, the defendant’s contention is that the previous conviction should not have been for the lesser crime of an attempt feloniously to possess a narcotic drug, but should have been for its felonious possession, the higher crime, the one to which he states that he had actually pleaded. In the minutes of a pleading disclose in 1952, the defendant, in the presence of his attorney, had pleaded guilty to the crime of the felonious possession of a narcotic drug and he was sentenced Elmira Reformatory. The item sheet attached to the indictment indicates by an entry thereon that the acceptance of the plea of an attempt feloniously to possess a narcotic drug was recommended by the district attorney. On the other hand, the official court record indicates, by an entry therein, that the plea had been taken to the lesser crime of an attempt feloniously to possess a narcotic drug.