An old man was arrested for acting in concert with a young man in allegedly committing the crimes of Kidnapping in the First Degree, Rape in the First Degree, Sodomy in the First Degree, and Unlawful Imprisonment in the First Degree, against a woman at approximately 11:00 p.m., in the vicinity of Bronx County. The Defendant old man and his co-defendant young man were subsequently indicted for all of the above charges. In the felony complaint, it was alleged that the Defendant old man and the young man detained the woman in a car and refused to let her leave when she requested to do so. Further, when she attempted to get out, she was pulled back inside and her mouth covered when she tried to scream for help. The two Defendants then held her down while the Defendant old man inserted his penis into her vagina and the young man inserted his penis into her mouth, both without her consent. At the time of his arrest, when told that he was being charged with rape, the Defendant old man responded that he kind of had that feeling. He was subsequently identified by both the woman and an eyewitness in separate corporeal lineups.
In the course of the Grand Jury presentation, it was established that the woman was with her lady friend. The friend knew the Defendant old man and talked to him while the woman was standing close by. The two ladies got into the back seat of the vehicle. When the lady friend got out and bought some cigarettes or marijuana, the Defendant old man drove off with the woman. The woman called to her lady friend for help. However, the defendant young man pulled her back into the car. The Defendant old man proceeded to drive to a parking lot. He then got into the back seat, grabbed the woman’s thigh and demanded that she place his penis into her mouth. Thereafter, the Defendant old man removed her pants, held her hands down, and engaged in sexual intercourse with her against her will. The defendant young man then inserted his penis into the woman’s mouth and masturbated into her mouth while the Defendant old man held her hands down as she was repeatedly shouting, “No.” The criminal defendant young man then struck the woman in the mouth. Afterwards, she was driven to within one block of her home and forcibly thrown out of the car.
DNA tests performed on the victim and Defendant revealed that his semen and that of another male were found on a vaginal swab of the victim as well as on her panties.
On February 26, 2001, the Defendant old man pled guilty to the lesser included offense of Attempted Sexual Abuse in the First Degree. He received a sentence of an indeterminate term of imprisonment of from one and one-third to four years. In the course of his allocution, the People stated that if this matter had gone to trial, the People would have proven that the defendant did, by forcible compulsion, force the complainant woman to have sexual intercourse with him. The Defendant then admitted under oath that he had sex with her without her consent.
In preparation for his sentencing, Defendant was interviewed by the Department of Probation for a Pre-sentence Report. The report noted that the Defendant admitted his guilt without showing remorse. The Defendant stated that he had sex with his ex-girlfriend. It further noted that the crime is evidence of the Defendant’s sexually deviant and aggressive behavior and that the Defendant appears in need of a counseling program to determine the reason for his actions. The Defendant also acknowledged that he has been using alcohol since age nineteen however he claimed that he does not abuse it.
On October 23, 2003, the Board submitted a Risk Assessment Instrument. It recommends designating the Defendant as a Sexually Violent Offender based on his conviction for Attempted Sexual Abuse in the First Degree. It also recommends classifying the Defendant as a Risk Level 2 based on an assessed score of 95. Specifically, the Board assessed 10 points for use of forcible compulsion; 25 points for sexual the intercourse, deviate sexual intercourse or aggravated sexual abuse with the victim; 20 points for being either a stranger to the victim or having a relationship established for the purpose of victimizing or a professional relationship; points for a criminal history with no sex crimes or felonies; 15 points for a history of drug or alcohol abuse; and 20 points for unsatisfactory conduct while confined or supervised including sexual misconduct.
The Board then compiled a Case Summary based upon a review of the inmate’s file which includes but is not limited to the pre-sentence investigation, prior criminal history and post-offense behavior. This summary stated, in pertinent part, that while incarcerated, the Defendant completed a sex offender counseling program. His final evaluation indicates that he accepted responsibility for his actions and demonstrated remorse and empathy. The Defendant old man who admitted to abusing alcohol and to drinking on the night of the rape, did complete a substance abuse program. His disciplinary history contains a sex offense wherein during a visit with his wife and mother, the Defendant was observed with his hand in between his wife’s legs, outside of clothing, rubbing her crotch vigorously. He also was placed in Protective Custody in May 2003 after being slashed on his face for gang activity.
The Defendant argues that because he was convicted of Attempted Sexual Abuse in the First Degree, there was no sexual contact, and, therefore, he should receive zero points in that category even if it was his intent to have forced sexual intercourse with the victim.
In response, the People contend that the facts alleged make out a completed rape and the Defendant’s own statements and DNA testing confirm that he had sexual intercourse with the victim. The People then claim that the Court is not limited to the single charge to which the Defendant pled guilty, but rather, may rely on the victim’s sworn testimony, the Defendant’s plea, Grand Jury testimony, Defendant’s statements and DNA evidence.
By virtue of his conviction, the Court finds the Defendant a Sexually Violent Offender. Additionally, the Defendant is appropriately classified as a Risk Level 2. The felony complaint, Grand Jury testimony, victim’s statement and Pre-sentence Report all establish by clear and convincing evidence that Defendant used forcible compulsion (10 points), had sexual intercourse with the victim and acted in concert with the co-defendant in having deviate sexual intercourse with her (25 points), and that the Defendant and victim were strangers (20 points). Indeed, the Defendant acknowledged in his sworn guilty plea and statement in the Pre-Sentence Report that he engaged in sexual intercourse with the victim against her will. The fact that the Defendant pled to a lesser included offense is of no consequence. Although the Defendant claims that he and the victim knew each other, the self-serving statement does not overcome the clear and convincing evidence that he and the victim were strangers as established.
In addition, the Defendant’s rap sheet indicates that he has a prior misdemeanor conviction (5 points), which he does not contest. Likewise, the Case Summary indicates that the Defendant has admitted to abusing alcohol on the night of the incident and to completing a substance abuse program for his addiction (15 points).
Moreover, the Case Summary also indicates the Defendant had disciplinary problems while in custody, including an act of sexual misconduct (20 points). Specifically, during a visit with his wife and mother, he was observed with his hand in between his wife’s legs, outside of clothing, rubbing her crotch vigorously. He also was placed in Protective Custody after being slashed on his face for gang activity. Therefore, the Defendant was appropriately assessed a total of 95 points and classified as a Risk Level 2, and the Court so finds.
Women and children are vulnerable to sexual abuse because predators think that it would be hard for them to fight and defend themselves. If you experienced abuse in any form and you want to pursue a legal action, hire a New York City Sex Crime Lawyer together with the New York Criminal Attorney from Stephen Bilkis and Associates.