In criminal case, the defendant appealed from a judgment of the Supreme Court, Queens County, convicting him of grand larceny in the third degree, criminal possession of stolen property in the third degree, criminal mischief in the third degree, and unauthorized use of a vehicle in the third degree, upon a jury verdict, and imposing sentence.
The court ordered that the judgment is modified, on the law, by (1) reversing the convictions of grand larceny in the third degree, criminal possession of stolen property in the third degree, and criminal mischief in the third degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment, and (2) vacating the sentence imposed on the conviction of unauthorized use of a vehicle in the third degree; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing on the conviction of unauthorized use of a vehicle in the third degree.
A Queens County Grand larceny lawyer said that Police Officers were parked on a Queens street on plainclothes patrol. At approximately 5:15 A.M. they observed the driver of a stolen Honda automobile pull the automobile alongside a Datsun automobile which was parked three car lengths in front of the officers' car. The defendant, who had been seated in the Honda's front passenger seat, exited the passenger door of the Honda and entered the Datsun. The officers pulled up behind the Honda, exited their car, and approached the Honda from either side with their shields displayed. After Officer the officer said "Don't move", the driver of the Honda began to slowly drive away. The defendant then exited the Datsun and jumped head first into the Honda through the passenger window, whereupon the driver accelerated in an attempt to flee the police. The officers reentered their vehicle and pursued the Honda. A short while later, the Honda struck a curb and crashed into a sanitation truck, that had been stopped for a traffic light. At that point both the driver and the defendant exited the vehicle and fled on foot. The police officers gave chase and later apprehended the defendant as he walked down a nearby street. The driver, however, successfully eluded arrest. Upon their return to the Honda, the officers found that the windshield was smashed, the rear bumper was hanging off, and the ignition cylinder was missing from the car.
The issue to be resolved in this case is whether or not the defendant should be convicted.
The Court held that in order to sustain a conviction for criminal possession of stolen property, the evidence must establish that the defendant knowingly exercised such "dominion and control" over the property so as to conclude that he "possessed" the property. With respect to a passenger in a stolen vehicle, dominion or control may be shown by evidence which establishes when the passenger entered the vehicle and/or what part, if any, he played in its taking. In the case at bar, there was neither a showing that the defendant participated in the taking of the Honda, nor proof as to when the defendant originally entered the vehicle. Although it may be fairly concluded that the defendant's act of jumping into the Honda and his subsequent flight from the police evidenced his awareness that the car was stolen, these facts alone do not show that the defendant exercised dominion and control over the vehicle. Without such a showing, the "defendant's presence in the car cannot be equated with possession".
Accordingly, the judgment must be modified, by reversing the defendant's conviction for criminal possession of stolen property in the third degree. Moreover, for the same reasons, we must necessarily conclude that the evidence was also legally insufficient to warrant the convictions for grand larceny in the third degree and criminal mischief in the third degree.
The court noted, however, that the defendant raises no issue as to his conviction for unauthorized use of a vehicle in the third degree, a crime for which one can be found guilty by merely riding in a vehicle knowing he does not have the consent of the owner"
The matter is remitted to the trial court for resentencing with respect to the conviction of unauthorized use of a vehicle in the third degree.
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The evidence was also legally insufficient to warrant the convictions for grand larceny
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Continued Commentary on the Execution of John Ferguson
Tobias Winright writes "John Errol Ferguson, Serious Mental Illness, and Capital Punishment," for the Huffington Post. He is an Associate Professor of Theological Ethics at Saint Louis University. In "Florida Ignores the Supreme Court," (August 4, 2013) the New York...
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Oklahoma Appeals Court Rejects Flawed Jury Instructions For Smith
"Oklahoma Court of Criminal Appeals affirms murder convictions, death penalty in deaths of 5," is AP coverage by Tim Talley, via the Republic. An Oklahoma appeals court Wednesday upheld the death penalty imposed on an Oklahoma man convicted in the...
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Missouri Women Charged With First-Degree Murder After Antifreeze Deaths Of Family Members
Two Missouri women, a mother and her daughter, were charged with first-degree murder earlier this month when police say the two confessed to poisoning two relatives with antifreeze and trying to kill a third.
Authorities say Diane Staudte and her 22-year-old daughter Rachel were arrested and charged earlier this week with two counts of first-degree murder, one count of armed criminal action and one count of first-degree assault. The women were thrown in jail without bond according to the Greene County prosecutor's office.
One of the victims of the women's poisoning was Diane's husband and Rachel's father, Mark. His death happened back in April of last year. At the time, Diane told investigators that her husband had not been feeling well and had suffered from seizures, a condition which was blamed for his death. The other person killed by the women include Diane's own 26-year-old son, Shawn. He died in September of 2012 with flu-like symptoms.
Immediately following the deaths of the two men, the local medical examiner said that nothing suspicious was to blame for their demise. In the husband's case the ME said that he died of natural causes while the son's death was blamed on prior medical issues. The case would have remained closed but for an anonymous tip which prompted officers to reexamine the deaths earlier this month.
According to authorities the tip came just in time as the woman's 24-year-old daughter Sarah had just been hospitalized with undetermined medical problems. Nurses told police investigators that though the 24-year-old's condition was dire, her mother rarely if ever visited. Nurses also said that the woman's behavior while at the hospital was bizarre, joking inappropriately with staff members about her daughter's poor health and discussing an upcoming vacation.
After police gathered enough information they questioned the mother, Diane, who admitted during interrogation to poisoning her family by putting antifreeze in their soda and Gatorade for several days. The mother said she decided to kill her husband because she hated him and that her son was a terrible pest. She then decided to kill her daughter because she was not working and had mounting student loan debt that needed to be paid. Initially the mother said she was the only one involved in the gruesome plot, but later the 22-year-old daughter admitted to helping plan and research the crimes.
The seriousness of the women's crimes goes without saying. In Missouri, first-degree murder is as serious as it gets. Missouri Revised Statutes Section 565.020 says that murder in the first degree is a Class A felony. This means that the two women face the most severe penalties available if convicted, the punishment in Missouri is either death or imprisonment for life without the possibility of parole.
If you've had a run in with the law and find yourself in need of a Missouri criminal defense lawyer capable of aggressively protecting your interests, contact our St. Louis criminal defense law firm today at (314) 863-0500.
Source: "2 Mo. women charged in antifreeze poisoning deaths," by Heather Hollingsworth, published at NBCNews.com.
See Our Related Blog Posts:Missouri Number One In The Country (For Meth)Changes Proposed to Missouri Criminal Statutes
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Update From Fort Hood
"Judge Denies Ex-Defense Team’s Bid to Limit Role in Fort Hood Suspect’s Trial," By Manny Fernandez for the New York Times. The judge overseeing the military trial of the Army psychiatrist charged in a deadly shooting rampage at the Fort...
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Second Rule 404(b) Ruling of the Week: Convictions for Simple Possession of Cocaine Were Not Admissible to Prove Knowledge or Intent to Distribute in a PWID Case
The Third Circuit issued another strongly worded precedential Rule 404(b) opinion today, explaining that the strictures of the rule are often "honored in the breach" by district courts.In United States v. Terrell Davis, No. 12-1486, the Third Circuit held that the government's barebones evidence that the defendant had twice been convicted of simple possession of cocaine was not admissible at his trial for possession with intent to distribute a kilo of cocaine. The cocaine was in the back seat of the car Davis was riding in. In its motion to admit the simple possession convictions, the government argued a litany of enumerated Rule 404(b) purposes. On appeal, the government argued the evidence was admissible to prove knowledge that the drugs were in the back of the vehicle and/or Davis's intent to distribute the drugs. The government did not offer any any evidence to prove that the cocaine from Davis's past simple possession convictions was similar in appearance, quantity, or form to what was found in the vehicle on this occasion.This second Rule 404(b) opinion of the week really sheds light on the second Huddleston prong - relevancy. The Court dug into the simple possession convictions, noting that simply because Davis possessed drugs before in some unknown quantity or form (i.e. powder, or crack, etc.) did not mean that he knew what the compressed powder cocaine was in this case. Similarly, with respect to intent, Davis' prior simple possession of drugs was hardly relevant to his intent to distribute, since far more people use drugs than sell them. The Third Circuit also highlighted the district court's error at the fourth and final Huddleston prong - the cautionary instruction. Here, the district court did not caution the jurors regarding the limited purpose for the evidence at the time the evidence was presented. It only instructed the jury during the final jury charge. Furthermore, rather than specifying the limited purpose for which the court admitted the evidence, knowledge, the district court read off the litany of enumerated Rule 404(b) purposes in its instruction.This opinion highlights the importance of challenging every step of the Huddleston test in defense responses to the government's motions to admit Rule 404(b) evidence. The opinion is located here: http://www2.ca3.uscourts.gov/opinarch/121486p.pdf
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Shareholder Books and Records Requests to Become More Frequent, and More Potent
As we previously detailed, a shareholder’s request for corporate books and records can raise competing concerns for the company and its directors. On the one hand, shareholders have a legal right under Section 220 to seek company records, and have Read More
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Putnam County Criminal Defense Lawyer :: Two Arrested for Animal Cruelty in Welaka
Police have arrested two people in Welaka and charged them both with animal cruelty.
The Putnam County Sheriff's Office received information regarding a possibly malnourished dog in the 100 block of Beecher Springs Road on Monday, July 22, 2013.
A further investigation revealed a deceased dog lying near a trash collection site along with four puppies, one of which was also dead. A witness at the site collected the three remaining puppies, and took them home to care for them.
Police conducted a search and found that the pit bull / hound mix and her puppies may have been neglected and/or abused as they were severely emaciated.
A female suspect was located and arrested and booked into the Putnam County Jail on 5 counts of Animal Cruelty. Her bail was set at $5,020.00.
During questioning, the woman apparently told police that her boyfriend dumped the dead dog and her puppies on the side of the road. A warrant was issued for the man's arrest, but police could not track him down.
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The man was located hiding out in the Welaka area on Monday, July 29, 2013. He was arrested and transported to the Putnam County Jail where he was booked on two counts of Causing Cruel Death by Pain and Suffering to an Animal and three counts of Abandonment of an Animal. His bond was set at $4,520.00.
Only one of the puppies survived and is currently being cared for by a new family.
If you are facing an animal cruelty charge in Putnam County, you need to seek legal help from a criminal defense attorney qualified to handle your particular legal matter as soon as possible. In the state of Florida, animal cruelty charges can vary from a civil infraction all the way up to a serious felony. Should you be facing charges of cruelty or neglect to more than one animal or a group of animals, the number of charges against you can be increased and the financial impact of fines can be intensified.
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The man was located hiding out in the Welaka area on Monday, July 29, 2013. He was arrested and transported to the Putnam County Jail where he was booked on two counts of Causing Cruel Death by Pain and Suffering to an Animal and three counts of Abandonment of an Animal. His bond was set at $4,520.00.
Only one of the puppies survived and is currently being cared for by a new family.
If you are facing an animal cruelty charge in Putnam County, you need to seek legal help from a criminal defense attorney qualified to handle your particular legal matter as soon as possible. In the state of Florida, animal cruelty charges can vary from a civil infraction all the way up to a serious felony. Should you be facing charges of cruelty or neglect to more than one animal or a group of animals, the number of charges against you can be increased and the financial impact of fines can be intensified.
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Appellate courts are also entrusted with the responsibility to oversee the plea bargaining process
The defendant appeals from a judgment of the Supreme Court, Kings County, rendered 5 May 2008, convicting him of rape in the first degree, upon his plea of guilty and imposing sentence. The sex appeal brings up for review the...
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The ground or issue raised upon the motion was previously determined on the merits
In this Criminal case, a Pro Se motion was filed by defendant, an inmate at the Correctional Facility, moves pursuant to CPL § 440.10(h) to vacate his judgment of conviction, following a jury trial, convicting him of Criminal Sale of...
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he officers also recovered from the man a $20 bill of prerecorded money
A man made an appeal from a judgment convicting him of murder in the second degree and criminal possession of a controlled substance in the fourth degree. The court found that it was legally sufficient to establish the man's guilt...
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Stand Your Ground Applicable in Variety of Cases
The Trayvon Martin-George Zimmerman trial not only inflamed racial controversy, it sparked a national discussion about whether laws such as Florida's "Stand Your Ground" are just. ![schoolrules1.jpg]()
Our Broward felony defense attorneys know that even President Barack Obama has weighed in on the matter, suggesting that states review their laws. Sen. John McCain, R-Ariz., has said that such a review would be appropriate for his state and the governor recently backed that call.
Similar laws exist in a number of states, including Alabama, Louisiana, Mississippi, Michigan, Tennessee, Texas, South Carolina, Ohio and California.
However, as it turns out, Florida's Stand Your Ground law, under Florida Statute 776.013, may be applicable to a wider range of cases - not just in murder trials.
The most recent example of this was a ruling made recently by the 4th District Court of Appeal. The decision was that a middle school student who got into a fistfight with a girl on a Broward County school bus should have been allowed to use the Stand Your Ground defense in order to defend himself and his actions.
The appellate panel further chastised the circuit court judge presiding over the case for denying the boy the opportunity to use the defense while challenging a charge of battery pending against him.
Ultimately, the boy was convicted and subsequently sentenced as a juvenile.
The lower court judge had initially ruled that the Stand Your Ground defense wouldn't apply in this case because the young teen wasn't defending his home or his vehicle.
However, the appellate court judge said the law would still be applicable because the boy had every right to be on that school bus. Therefore, he had no duty to retreat when he felt threatened.
As such, the appellate court overturned the boy's conviction and said the circuit court judge should consider that the teen was acting within his rights under the Stand Your Ground law.
We don't know a whole lot about the original incident, as it was a juvenile case and those are handled much differently than adult cases in terms of public access. What we do know from appellate court records was that the boy and girl were on the same school bus, heading home for the day, when a fight erupted. The school bus driver indicated that the girl had grabbed a hold of the boy's jacket and punched him before pulling him back down on the seat. At this point, the boy began to fight back.
The girl's testimony, however, was that the boy attacked her unprovoked.
The appellate court's ruling didn't address whether it believed any singular version of events. The issue is whether, if the boy's version is believed, he had a right to meet force with force on that school bus.
Appellate court judges said he did. However, the question of whether that force was justified under the argument, or whether it was necessary to prevent death or bodily harm, is a factual question that must be answered by the lower court. In other words, the lower court has to decide who started the fight and if it was the girl, whether the boy responded in a way that was within his rights under the law.
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Our Broward felony defense attorneys know that even President Barack Obama has weighed in on the matter, suggesting that states review their laws. Sen. John McCain, R-Ariz., has said that such a review would be appropriate for his state and the governor recently backed that call.
Similar laws exist in a number of states, including Alabama, Louisiana, Mississippi, Michigan, Tennessee, Texas, South Carolina, Ohio and California.
However, as it turns out, Florida's Stand Your Ground law, under Florida Statute 776.013, may be applicable to a wider range of cases - not just in murder trials.
The most recent example of this was a ruling made recently by the 4th District Court of Appeal. The decision was that a middle school student who got into a fistfight with a girl on a Broward County school bus should have been allowed to use the Stand Your Ground defense in order to defend himself and his actions.
The appellate panel further chastised the circuit court judge presiding over the case for denying the boy the opportunity to use the defense while challenging a charge of battery pending against him.
Ultimately, the boy was convicted and subsequently sentenced as a juvenile.
The lower court judge had initially ruled that the Stand Your Ground defense wouldn't apply in this case because the young teen wasn't defending his home or his vehicle.
However, the appellate court judge said the law would still be applicable because the boy had every right to be on that school bus. Therefore, he had no duty to retreat when he felt threatened.
As such, the appellate court overturned the boy's conviction and said the circuit court judge should consider that the teen was acting within his rights under the Stand Your Ground law.
We don't know a whole lot about the original incident, as it was a juvenile case and those are handled much differently than adult cases in terms of public access. What we do know from appellate court records was that the boy and girl were on the same school bus, heading home for the day, when a fight erupted. The school bus driver indicated that the girl had grabbed a hold of the boy's jacket and punched him before pulling him back down on the seat. At this point, the boy began to fight back.
The girl's testimony, however, was that the boy attacked her unprovoked.
The appellate court's ruling didn't address whether it believed any singular version of events. The issue is whether, if the boy's version is believed, he had a right to meet force with force on that school bus.
Appellate court judges said he did. However, the question of whether that force was justified under the argument, or whether it was necessary to prevent death or bodily harm, is a factual question that must be answered by the lower court. In other words, the lower court has to decide who started the fight and if it was the girl, whether the boy responded in a way that was within his rights under the law.
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IS DRUNK WALKING A GOOD ALTERNATIVE TO DRUNK DRIVING?
By driving under the influence, you could cause harm to property, yourself, and others. You could also be charged with DUI/OVI. Thanks to public awareness programs, the risks of drunk driving are well known. Not so well known are the risks of drunk walking...until now.
In the 2009 book SuperFreakonomics, authors Steven Levitt and Stephen Dubner compare the risks involved in drunk driving and drunk walking. According to the authors, driving-age Americans walk 43 billion miles each year. Assuming that one mile out of each 140 miles is walked drunk, the same proportion of miles that are driven drunk, then 307 million miles are walked drunk each year. The authors conclude: "Doing the math, you find that on a per-mile basis, a drunk walker is eight times more likely to get killed than a drunk driver". This section of the book invited criticism regarding the statistical analysis used to reach the conclusion. It also ignited controversy over the suggestion that driving drunk is a safer choice.
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Government data released earlier this week partially agrees with SuperFreakonomics: walking drunk is not a safe choice. The National Highway Traffic Safety Administration (NHTSA) collected information from all 50 states regarding pedestrian fatalities and reported it in the "Pedestrians" section of Traffic Safety Facts. The report says that about 37% of pedestrians killed in 2011 traffic crashes had blood alcohol levels of.08 or higher. Of the drivers involved in those fatal crashes, about 13% were at or above .08.
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Government data released earlier this week partially agrees with SuperFreakonomics: walking drunk is not a safe choice. The National Highway Traffic Safety Administration (NHTSA) collected information from all 50 states regarding pedestrian fatalities and reported it in the "Pedestrians" section of Traffic Safety Facts. The report says that about 37% of pedestrians killed in 2011 traffic crashes had blood alcohol levels of.08 or higher. Of the drivers involved in those fatal crashes, about 13% were at or above .08.
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New Yorker: SWAT-Team Nation
New Yorker: SWAT-Team Nation by Sarah Stillman:
[...] Read more!
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Carson on Deciding to Act Corruptly
Lindsey D. Carson (University of Toronto Faculty of Law) has posted Deciding to Act Corruptly on SSRN. Here is the abstract: In the same way that the market supply and demand for a given good or service depend on individual...
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Remember - you are the lifeline
I just got back from the annual innocence conference that is sponsored by the Texas Criminal Defense Lawyer's Association. I've had the privilege at the seminar for several years - this year on Innocence writs - and this year it was extended to 1 1/2 days.
One of the highlights of the seminar is a dinner. Several exonerees are usually invited to speak. This year it was Richard Miles and Billy Smith. Even if you've you've heard them before, their stories are both heartbreaking and inspiring. It always amazes me how gracious these individuals are.
The message that came across this year came primarily from Richard Miles. He reminded lawyers they are the client's lifeline. The lawyer is more than a lawyer - he or she is the client's hope for freedom, and sometimes their only link to the outside world.
Thankfully there are a lot of good lawyers who recognize this, and give their all for every client. They know that sometimes a client just needs to know you are working for him. Unfortunately though there a a few lawyers who look at clients as nothing more than a cash cow. They do the least amount possible - which increases the number of cases they can handle. Fortunately there aren't a lot of those lawyers.
I believe every lawyer needs to attend at least one of those programs. More importantly, I think it should be mandated for prosecutors. They need to know what kind of impact they have on individuals and their families.
I don't believe there is any higher calling than working to free those who exonerated. You aren't going to get rich - in fact if you're not careful you can easily go break. But the rewards are immeasurable. Standing outside a prison and watching someone who had been locked for years is a feeling that cannot be described. It's the lawyer's equivalent of winning the super bowl.
There's always for more lawyers to join the fight. Think about it.![]()
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San Diego defense lawyer Ryan Mardock wins San Diego state robbery trial !
M.S. admitted from the beginning that robbed the cell phone. But he denied ever using a handgun during the robbery. The victim did not tell the 911 operator that a gun had been put in his face, but he told this to the jury during the three week trial last week in San Diego Superior [...]
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New Yorker: Taken; a look at civil forfeiture
New Yorker: Taken by Sarah Stillman:
Under civil forfeiture, Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes. Is that all we’re losing?
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The court dismisses the indictment with much regret
The criminal defendants and complainants own a four- floor residential real property located at 1458 51st Street in Kings County. The defendants own a two-thirds share of the property and the complainants own a one-third share. The separate deeds that...
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It is clear that an overt act in furtherance of the conspiracy took place in New York.
A working student called someone in Florida with the hope of using $50,000 in his possession to become involved in the sale of a drug. Even if the negotiations were carried on through at least two telephone conversations and the...
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