In this criminal case, defendant was arrested and charged with the violation of Penal Law Section 230.00, a class B misdemeanor. A bench trial was held. The People presented the testimony of Police Officer assigned to the Brooklyn South Public Morals Division (BSPMD). He testified that in January 1994, he placed a telephone call to a specific number to set up a “rendezvous” with someone he believed to be engaged in prostitution. That belief was based on a complaint the officer’s unit had received several months before.
A Kings County Criminal attorney said that the Officer testified that after several telephone calls, he was instructed to go to an Avenue. He did so and was met at the door by a female, white, who weighed about 300 pounds and had blond hair. He identified this woman as the defendant. He followed the defendant into the building to apartment. When he got into the apartment, he testified that the defendant told him that it would cost him $100 and that he should get undressed and go to the bedroom. He then asked the woman what he would get for $100 and the woman said a brand. He said that he told the defendant he was not interested in said brand and was told by the defendant that straight sex was $80 and oral sex was $20.
The officer then testified that he refused to undress, and the defendant directed him to go into the bedroom and put on a video while she slipped into something comfortable. The officer testified that in the bedroom were tapes of sex crimes videos and a dildo. The officer put on a tape and then transmitted a code to the arrest team to set into place the apprehension of the defendant. The officer subsequently opened the front door and admitted the arrest team. Defendant then was advised to get dressed and a Detective placed her under arrest for prostitution.
On cross examination, the officer acknowledged that he had a tape recording device in his pocket but had not recorded any of the initial telephone conversations. The recording device was taken to the location and was on, but the tape was not audible. The officer also acknowledged that he had a transmitter connected to his supervisor and was able to contact the rest of his team to let them know his location. However, the officer acknowledged that inexplicably, his communication device was not on the entire time the alleged discussion was held between defendant and the witness.
The People then presented the testimony of the Detective. He testified to the fact that he went into the Apartment and arrested the defendant. Detective testified to the fact that one of the items seized in defendant’s apartment was a business card imprinted with a logo. The card contained no reference to sex or a drug for money. The People then rested.
Defendant then took the stand and was sworn in as a witness. She testified that she is currently unemployed but has, in the past, designed and sold jewelry, given psychic readings and been involved in creating and delivering fantasies.
She testified that, she made an appointment by telephone
She said the man wanted to give her money, but she said no and she sent him into the bedroom and directed him to take his clothes off. He refused to take his clothes off, which didn’t upset her because typically, she testified, men involved in the experience needed to be dominated and ordered around. She testified that she went into the bathroom to change into her outfit to take her position as the dominatrix. She explained that in sex no actual intercourse or sexual touching took place. Instead, the coordinator of the activity, the dominatrix, a role played by her, ordered and directed the passive criminal partner to perform certain acts.
In the instant matter, when the man (Officer) refused to take his clothes off, she understood that he was just being macho and wanted to be ordered around. She testified that as the dominatrix, she makes an assessment as to what a customer wants and/or needs and then performs that desire. She stressed the fact that there is no sex or sexual conduct like sexual intercourse or physical contact with the person’s genitals. She further testified that as a dominatrix, she wore a specific costume–black gloves, leather corset, panties and high heels. She was putting that costume on when she was arrested. She testified that she did not offer to exchange sex for money, and that she did not enjoy sex crimes all that much.
On cross examination, she acknowledged that the sex required many props which included whips, chains, handcuffs, etc. She stated that all those items were in drawers in the apartment but that video tapes were in evidence everywhere.
After all the evidence was heard and both sides rested, the Court reserved decision.
Section 230.00 of the Penal Law provides that “A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee”. The term sexual conduct is not defined in the statute but has since been described in various cases. That conduct includes acts of masturbation, homosexuality, sexual intercourse, or physical contact of the person’s clothed or unclothed genitals, buttocks or a woman’s breast. But the sado-masochistic acts described by the defendant: foot licking, spanking, domination and submission do not appear to fit within the category of sexual conduct referred to in the statute. Accordingly, the Court do not believe the legislature intended to apply the crime of prostitution to the basic sado-masochistic relationship as described.
With respect to the Officer’s testimony, the Court found it credible, up to a point. The Court does not believe defendant offered to perform intercourse and/or oral sex. It believed that the Officer entered the apartment intending to participate in an arrest and nothing was going to deter him from that end result. Further, it was inexplicable that the officer’s communication device would be turned on only to summon the arrest squad, and would not be left on so that the entire “transaction” could be monitored.
Accordingly, based on the evidence and testimony submitted at trial, The Court ruled that the People have failed to prove their case beyond a reasonable doubt. The defendant is not guilty and the charges are dismissed.
Sex crimes should be prosecuted with diligence. The lawyers should be vigilant enough to handle the case. Here in Stephen Bilkis and Associates, we have vigilant lawyers who will assist you in your legal problems. Our Kings County Criminal attorneys are always ready to render their services to our client in case of need. Our Kings County Sex Crimes lawyers are likewise always ready to give you their advice and to help you in your legal problems. For more inquiries, write or call us now.