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Published on: July 17, 2012

Defendant Files Case in New York Supreme Court Regarding SORA Classification

by Stephen Bilkis

In August 2002, a man was accused of sexually molesting a 15-year-old girl in Florida. Five months later, he participated in an armed robbery of another Florida home. He pled guilty to both crimes and was sentenced to five years in prison. After being released, he moved to Green County, New York. The Board of Examiners of Sex Offenders completed a risk assessment which classified him as a Level One offender.

The prosecutor later argued that the Board failed to assign an additional 30 points based on the felon’s conviction for the home 2003 home invasion. County Court determined that the robbery, while not a prior crime, should still be considered as an aggravating factor which would justify upgrading his classification to a Level Two offender. He subsequently appealed this decision to the New York Supreme Court Appellate Division, Third Department.

Published on: July 16, 2012

New York Appellate Court Determines if Prior Confession is Admissible

by Stephen Bilkis

Two men were indicted on January 28, 1977, for murder in the second degree and attempted robbery in the first degree. A woman was also indicted for the same counts but pled guilty to attempted robbery and testified for the prosecution at trial. According to court documents, the three and another man attempted to rob another in his home. During the attempted robbery, the owner was shot in the head. He died a few days after the incident. Had his home been unoccupied at the time the four individuals broke into his home with the intent to steal, his life might have been spared and the defendants may only have been charged with burglary.

Three weeks after the robbery occurred, one of the robbers was arrested and given a Miranda warning. He then made a statement to police in writing, which he signed. A second written statement was later given to an assistant district attorney. In these two statements, he claimed that he and his partner had developed a plan to make money, which involved the robbery of the house. The two men met with another before going to the woman’s home to further discuss the robbery. They forced their way into the apartment. One pointed a gun at the owner but stated he had never intended to harm him. A struggle ensued and the gun went off, causing the injuries to the owner. Both theives then left the scene.

Published on: July 14, 2012

New York Appellate Court Determines Admissibility of Prior Testimony in Robbery Case

by Stephen Bilkis

On March 9, 2003, a robbery occurred at Maggie’s Restaurant, located at 2643 Jerome Avenue in Bronx County, New York. On March 11, the detective investigating the case got a telephone call from the New York County Parole Office. The Parole Office stated that David X was present. The detective then went to the office, arrested Mr. X and gave him his Miranda warning. The detective asked Mr. X if he knew why he was being arrested and then told him it was for the robbery at the restaurant. According to the detective, Mr. X then stated that he was at the scene and participated in the robbery but did not have a gun at the time.

The detective found a pawn shop ticket in Mr. X’s pocket, which he stated was for a necklace that had belonged to one of the restaurant’s customers. The detective and Mr. X went to the pawn shop and retrieved the chain.

Published on: July 13, 2012

Defendant Files Appeal Based on Error in Denying Motion to Vacate Judgment in Robbery Case

by Stephen Bilkis

Two separate robberies occurred in parking garages on the East Side of Manhattan in August of 1982. On August 17, A and two other individuals stole two cars after threatening the parking attendant with a gun. A few days later on August 20, 1982, B, who had participated in the first robbery, picked A up from his mother’s home. Another robbery occurred in a different parking garage and Colon and Tisdale were later seen showing off one of the four cars that were stolen to other people in the neighborhood. The parking attendant who worked at the second garage was found dead on the floor of the garage office. He had been killed with a shotgun and fingerprint evidence suggested that B but not A had been present in the office. Despite this evidence, Mr. A was convicted of second degree murder and first, second and third degree robbery. He was sentenced as a violent offender and received 15 years to life for the murder, 6 to 12 years each for the first and second degree robbery counts and 3 to 6 years for the third degree robbery count. The judge ordered the sentences to run concurrently with one another but consecutively with another sentence of 12 ½ to 25 years for an unrelated conviction.

Mr. A appealed his conviction on the grounds that the trial court committed an error in denying his motion to vacate the judgment based on insufficient evidence. The Supreme Court Appellate Division, first Department was charged with determining whether his appeal had any merit.

Published on: July 12, 2012

New York Appellate Court Determines Whether Sufficient Evidence Was Presented at Trial

by Stephen Bilkis

A was charged with eight counts involving different sex crimes. The charges were based on claims that he had sexually abused another child who rode the school bus with him on different occasions in 2005, 2006 and 2007. Mr. A was convicted of three counts of committing a criminal sexual act in the first degree and two counts of first degree sexual abuse. He was sentenced to 15 years in prison and subsequently appealed his case to the Supreme Court of New York Appellate Division, Third Department.

The appellate court was charged with determining whether the evidence presented at trial was sufficient to warrant a conviction. Mr. A’s criminal defense attorney argued that while his client admitted engaging in inappropriate sexual contact with a minor child, the evidence did not prove that he ever compelled the victim to participate through verbal or physical force. Under New York Penal Law, forcible compulsion must be considered from the victim’s perspective and weighed against their age, the size and strength of the person perpetrating the unlawful sex acts and their relationship to the victim.

Published on: July 11, 2012

New York Supreme Court Decides if Double Jeopardy is Present in Murder Case

by Stephen Bilkis

M was tried for intentional murder, felony murder, robbery in the first degree and criminal possession of a weapon in the second degree. The robbery charge was dismissed due to lack of evidence. The other counts were then presented to the jury along with an attempted robbery charge, which defense did not object to. A jury found Mr. M not guilt of intentional murder but could not reach a verdict on the other counts. A retrial was held and Mr. M was charged only with felony murder and weapon possession. Mr. M’s defense attorney moved to dismiss the indictment on the claim that double jeopardy had already been attached. This motion was denied and the indictment was amended to include a charge of felony murder with the underlying felony being robbery or attempted robbery. The indictment did not include separate counts for either robbery or attempted robbery. Mr. M was subsequently convicted of both felony murder and the weapons charge. His attorney appealed his conviction to the Supreme Court Appellate Division, Second Department.

The appellate court was charged with determining whether double jeopardy had in fact attached, which would have rendered the second trial for felony murder moot. The court held that the trial judge’s decision to drop the first degree robbery charge did effectively bar further prosecution for that count of the indictment. However, the court also stated that double jeopardy did not apply to the felony murder count since Mr. M was never charged separately with robbery or attempted robbery. Mr. M also challenged the addition of attempted robbery to the indictment as the underlying felony for the murder count. The court did not support this claim and accordingly, opted to uphold his original conviction on murder in the second degree and criminal possession of a weapon in the second degree.

Published on: July 10, 2012

New York Appellate Court Reverses Trial Court Decision Regarding Inclusory Concurrent Counts

by Stephen Bilkis

W was convicted of four counts of first degree robbery, two counts of robbery in the second degree four counts of grand larceny in the third degree. Mr. W appealed his conviction to the Supreme Court Appellate Division.

The appellate court held that Mr. W’s conviction on the second degree robbery and third degree grand larceny counts should be reversed. The majority argued that under New York law, when a verdict is comprised of inclusory concurrent counts, a guilty verdict on the highest count of the indictment is essentially a dismissal of the lesser included counts. The court held that the evidence demonstrated that Mr. W had committed the robbery with three other individuals who were armed at the time. Based on the facts of the case, the court reasoned that Mr. W could not have committed robbery in the first degree without also committing the other crimes included in the indictment. Under New York law, one of the elements of first degree robbery involves the threat or use of force and/or the display or use of a weapon. Had no weapon been present at the time the crime was committed, Mr. W would likely have been charged with second or third degree robbery or a lesser count of larceny.

Published on: July 9, 2012

Court Reduces Robbery Charge to Larceny Based on Lack of Force Used

by Stephen Bilkis

B was charged with one count of robbery in the third degree. On April 9th, 2010, Mr. B allegedly stole $140 from Nellisha Gregory, who worked for a Syracuse branch Bank of America. According to the indictment issued against him, Mr. B took the money by force. This is important to note since the New York Penal Code defines robbery as the forcible stealing of another person’s property. Had the indictment not claimed that Mr. B used force, he may have only been charged with petty larceny or another minor crime. Had Mr. Brown used a weapon or other dangerous instrument in the commission of the robbery, the charge may have been elevated to robbery in the first degree.

Mr. B’s criminal defense attorney filed a motion with the Onondaga County Court on the grounds that the evidence presented to the Grand Jury was insufficient to support a charge of third degree robbery. The court was charged with determining whether the acts committed by Mr. B satisfied the elements of robbery in the third degree as defined under New York law. For purposes of the Grand Jury proceedings, the standard of proof is prima facie evidence, rather than proof beyond a reasonable doubt.

Published on: July 7, 2012

Defendant Charged with Robbery and Weapons Possession Moves for Huntley Hearing

by Stephen Bilkis

R J was charged with one count of first degree robbery and one count of fourth degree weapon possession. The indictment was based on an incident that occurred on September 22, 1979, in which Mr. J allegedly stole money from a bread delivery man. According to the victim’s statement, Mr. J used a weapon in the commission of the crime.

On November 7, 1979, Mr. J gave separate statements to police and to a Bronx County Assistant District Attorney in which he admitted the robbery but denied the use of either a real or replica gun. Mr. J’s attorney moved for a Huntley hearing and opted for a nonjury trial. The hearing and the nonjury trial were held on March 19, 1980 and March 20, 1980 respectively.

Published on: July 6, 2012

New York Appellate Court Decides if Trial Court Erred in Aquitting Defendant Based on Repugnancy

by Stephen Bilkis

T J was convicted of attempted robbery in the second degree and assault in the second degree stemming from an incident that occurred on June 16th, 1983. In that incident, high school student N T stated that a gym bag had been stolen from her locker. She went looking for the bag and found it in the first floor ladies’ room where Ms. J and two other students were in the process of looking through it. T took the bag and was attempting to leave the bathroom when Ms. J began to assault her. Another young woman became involved and grabbed at a gold chain Ms. T had around her neck. The girl was unsuccessful in taking the chain and left the bathroom.

The jury found Ms. J guilty of the second degree attempted robbery involving the physical assault of another person but not guilty of attempted robbery involving the aid of another person. Although the jury found Ms. J guilty of the attempted robbery and assault, the trial court set aside the jury’s verdict. The court argued that the since the jury acquitted Ms. J on the second count of attempted robbery involving the aid of another person, a guilty verdict for the other attempted robbery count could not be sustained. The court further noted that the victim had testified that someone else other than Ms. J had attempted to steal the chain around her neck. The verdict was set aside on grounds of repugnancy, which is when a jury convicts a defendant of one offense but acquits them of another when both have the same underlying circumstances and elements.