Articles Posted in Criminal Proceedure

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When it comes to sentencing in a criminal case, a court is not allowed to consider a proceeding in which the defendant was ultimately acquitted or that was otherwise resolved in favor of the defendant.  In this case the Court of Appeals considered whether the Appellate Division properly concluded that the defendant in a criminal possession of a controlled substance  case was not entitled to resentencing when the sentencing court improperly considered unsealed records related to another criminal proceeding that resulted in the defendant being acquitted.

In this drug crime case, the defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree. The deal he struck with the prosecution was that in exchange for pleading guilty he would receive a sentence of four years of imprisonment followed by three years of post-release supervision.  However, there was a condition to the defendant receiving this sentence:  he had to stay out of trouble. In other words, if the defendant committed another crime, the sentencing agreement was void.

Before the sentencing hearing the defendant was again arrested and was prosecuted for another crime. Had he been convicted, this would have been an obvious violation of the plea agreement. However, he was ultimately acquitted and the transcript of the trial was sealed  pursuant to CPL 160.50.  Under New York’s sealing law, under certain circumstances a criminal record is hidden from public view and from most government agencies. However, law enforcement can access the records, as can the courts and certain agencies.

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It may seem odd that a defendant would challenge a sentence in a criminal case on the ground that it was too lenient. However, that is exactly what happened in People v Francis. What makes this case even more odd is that the defendant moved to set aside a sentence that he already served nearly 30 years prior to when he filed the motion.

In 1988 the defendant was sentenced to six months in prison after pleading guilty to third-degree criminal possession of a weapon. In 2015, pursuant to CPL 440.20, the defendant filed a motion to set aside the sentence on the ground that it was illegally lenient. In addition to the 1988 conviction, over  15 year period the defendant had been convicted other crimes, but under aliases, including a 1982 nonviolent felony conviction.  As a result, he received sentences that were more lenient than they should have been given his true criminal history.

In 1997 the defendant was again arrested. This time, after a jury trial, the defendant was convicted of robbery in the first degree, a violent felony. Based on his 1988 conviction as well as a 1991 conviction, the defendant was adjudicated a persistent violent felony offender and was sentenced to 23 years to life in prison.

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In a drug possession case where the court had to decide whether the defendant’s right to a speedy trial had been violated, the court also examined the distinction between a criminal complaint and an information.

On October 23, 2012, the defendant was charged with criminal possession of a controlled substance in the fifth degree, a felony, in violation of Penal Law §220.06(2).  The defendant allegedly was in possession of Hydrocodone and Alprazolam pills. On October 25, 2012, because there was no lab evidence confirming the type of drug that the defendant allegedly possessed, the charge was reduced to criminal possession of a controlled substance in the seventh degree, a Class A misdemeanor under New York Penal Law §220.03. When the charge was reduced, the court marked the accusatory instrument a misdemeanor complaint. Nearly 5 months later, in March 2013, the defendant’s case had not been brought to trial.

New York’s speedy trial rules required that if the charge is a felony, the case must be ready for trial within 6 months.  For class A misdemeanors the case must be ready for trial within 90 days, while for class B misdemeanors, the case must be ready for trial within 60 days. The time period runs from when the original complaint was filed. Where as in People v. Watson a felony complaint is replaced with a new accusatory instrument charging a misdemeanor, the prosecution must be ready for trial within 90 days from the filing of the new instrument or 6 months from the filing of the felony complaint, whichever is shorter.

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(People v. DA, NY Slip Op 08537)

December 13, 2018

In this case, the court weighs the question regarding whether the grand jury can readdress a charge that has been presented to it after it had been dismissed in a prior proceeding. The court held that a charge may not be resubmitted to another grand jury pursuant to Criminal Procedure Law 190.75(3).

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DWI in NY: Driving While Intoxicated – VTL 1192.3 Driving While Intoxicated is a dangerous habit among the drivers in the country. It is said that it is not just dangerous; the law likewise punished the drivers who are found to be intoxicated while driving. Driving While Intoxicated is just a part of crimes which are punishable while driving, the law also provides for the following crimes which can be violated while driving – DWI (Driving While Intoxicated), DWAI (Driving While Ability Impaired) and DUI (Driving Under the Influence) – but regardless of the particular offense in New York (both NYC and Westchester), prosecutors and judges take these charges very seriously.

A New York DWI Lawyer said that we have handled numerous DWIs, DWAIs and DUIs here in our firm, whether they are charged as VTL 1192.1, VTL 1192.2, VTL 1192.2-a or VTL 1192.3. A particular question which a layman frequently asked us is “how can I be charged with DWI if there is no breathalyzer or intoxilizer that indicates how much alcohol I had in my system?” In answering their question, we first ask for the circumstances surrounding their problem. Once we already determined the main problem, we give them an advice which will benefit them. In the question stated above, the answer is quite simple. As we call it in the criminal law field, a person can be held liable for DWI even without a chemical test. This can be done by using the observation of the arresting officer based on the appearance of the driver and if indeed the latter was intoxicated. This is also known as the “Common Law” DWI.

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An offender, indicted for the crimes of grand larceny in the second degree (six counts), grand larceny in the third degree (three counts), petit larceny (one count), criminal tampering in the second degree (five counts), and theft of services (five counts), brings this omnibus motion to (1) inspect the grand jury minutes and dismiss the indictment due to insufficient evidence before the grand jury; (2) to dismiss specific counts in the indictment because they are duplications of and inconsistent with other counts and (3) to dismiss the theft of services counts on the ground that the presumption created by section 165.15 of the Penal Law is unconstitutional.

The counts charged in the indictment arise out of the theft of approximately 3,391,000 cubic feet of gas from a Union Gas Company. The theft of gas was accomplished through bypasses, pieces of pipe attached to the gas company’s lines, which allow one who is not a gas customer to obtain gas by tapping gas company lines and receiving free service.

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A New York Criminal on July 29, 2009, Anne Graper called Access-A-Ride, a paratransit service in New York, to pick her up the following day and to take her to “Special Surgery Hospital” to visit her daughter who just had a hip surgery. According to Ms. Graper, the driver dropped her off at the wrong location. She tripped and fell when she tried to cross a crowded street to go to the correct building.

Ms. Graper sued the Metropolitan Transit Authority New York City, operator of Access-A-Ride, to recover damages for the injuries she sustained. She said that MTA, as a common carrier, has an obligation to see to it that she is safety deposited in the correct location given her age, health and previous history of falling.

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A New York Criminal Lawyer said the statutes of limitations are different for each crime or civil action. It is important to learn what the statute of limitations is that a particular court action covers. However, statutes of limitations are not carved in stone. There are exceptions to the time periods that can make it possible for a person to file a case even after the time period has passed. Sexual assaults and child abuse cases have an exception because of the age of the victims. If a person is abused while they are still too young to file a case themselves, then they may file that case when they reach legal age without regard in most cases for the statute of limitations that is involved with the crime.

One crime of this type occurred when a young woman reached legal age to make a complaint against her father. She filed a claim that stated that between November 1, 2007 and December 31, 2009, her father victimized her repeatedly in a sexual and incestuous manner. She testified in court that it occurred in their home at 6927 Costa Avenue located in Queens County, New York. She stated that the first time that her father molested her, he gave her alcoholic beverages in an attempt to loosen her morals and memory of the encounter. He then forcibly touched her vaginal area against her will. She stated that the second time, he again plied her with alcohol and fondled her vaginal area. He also grabbed her breasts on several occasions and squeezed her bottom. During one encounter, he took her into his bedroom where he exposed his penis to her. At the time that these encounters began, the girl was between twelve and fourteen years of age.

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A New York Criminal Lawyer said in this criminal case, the underlying drug crime involved a large quantity of cocaine possession. A Bronx Drug Crime Lawyer said that, defendant was indicted for first-degree criminal possession of a controlled substance, but was permitted to plead guilty to third-degree possession and released on bail pending sentencing. Defendant absconded, remained outside this jurisdiction for many years, and was convicted of a new drug felony, all of which was in violation of his plea agreement. In addition, a Bronx Criminal Lawyer said that, defendant had absconded while awaiting sentencing on his conviction in Bronx County of criminal possession of a weapon in the third degree. Bronx Drug Crime Lawyer said that defendant filed a motion for re-sentencing.

A New York Criminal Lawyer said the issue in this case is whether defendant is entitled to his motion for re-sentencing.

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A New York Criminal Lawyer said the Court Officers Benevolent Association of Nassau County (“COBANC”) is the exclusive bargaining agent for certain court employees located in Nassau County, including employees in the Major I title. The Petitioner, is currently the president of COBANC and co-petitioners, are all employed in courts in Nassau County in the title of Major I (JG 26).

COBANC has its principal place of business in Nassau County and the petitioners reside in Nassau County. The Unified Court System constitutes the Judicial Branch of Government of New York State, established and organized in accordance with Article VI of the New York State Constitution.

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