Bronx

Published on: June 30, 2012

Supreme Court Discusses Date Rape

by Stephen Bilkis

On February 18, 1992, The Supreme Court for New York County, New York, discussed the application of punitive damages in civil suits against criminally convicted perpetrators would be appropriate in rape cases. A New York Criminal Lawyer said the case in question granted $10,000,000.00 in damages to the victim of a sexual assault in 1988. Her attacker was charged and convicted of rape, sodomy, and sexual abuse. The victim subsequently filed a civil suit to recover damages. The victim was a fashion model who relied on her unblemished physical beauty for her source of income. During the course of the rape, her attacker had slashed her with a knife. The slashing made it impossible for her to continue gainful employment as a model.

The 1991 amendment to the Civil Rights Law § 50-b demands that all victims of sex offenses regardless of their age be protected from having their identities disclosed to the public. The reason that rape victims identities require protection from disclosure is associated with the societal stigma that is placed on victims of sexual assault in general. This is especially true in the case of date rape. Date rape which is sometimes called acquaintance rape, is the most common form of rape in this country. Most cases of date rape go unreported. Prior to 1974, a rape victim had to have corroboration in the form of an eye witness or physical evidence to substantiate her claim of rape. That created an atmosphere of danger for any woman who was alone with a man. The court recognizes that date rape is a crime so old that it is recorded in the bible. For many years, if a woman willingly went to a man’s apartment or bedroom, the general opinion was that she knew that she would be expected to have sex with that man. If she then told him that she did not want to have sex with him and he forced her to have sex, society had the view that she had asked for it. She was considered to have known what she was getting into when she agreed to be alone with a man in an area that “good” girls did not go.

In 1988, mainly as a result of a book about it, date rape was put into the spot light. Many women reported during a comprehensive study to have suffered from forced sexual intercourse by dates. In fact, a staggering 20% of college students reported in 1985 that a date had forced them to have sexual intercourse against their will at least once. Many women did not even call forced sex on a date, rape. The FBI estimated that in 1988 60 to 80% of the women who were raped, were raped while on a date with their attacker. It was not until 1991, when the Violence Against Women Act was proposed that these issues were brought to the forefront of criticism in American public view. These proposed laws would make federal penalties available for rape prosecutions and require mandatory restitution to the victims.

Published on: June 30, 2012

Court Looks at Defendant’s Intent in Rape Charges

by Stephen Bilkis

On March 25, 1991 The Supreme Court, Appellate Division, Second Department in New York heard an appeal on a case of murder associated with an attempted rape. The elements of the offense are seemingly so bizarre as to warrant mention. The offender was originally convicted on May 10, 1984, with second degree murder, manslaughter in the second degree, and attempted rape in the first degree.

A New York Criminal Lawyer said he offender in this case stated that he knew the victim because he spent a good deal of time at her parents’ house. He fantasized about the victim repeatedly and became obsessed with the idea of having sex with her. Since, he knew that she would never allow him to have sex with her, he fantasized about raping her. He devised a plan to attack her and force her to have sex with him. He waited in her family home for her to come home and get into the shower. He went up the stairs and hid outside the master bedroom. He picked up a shillelagh, which is a type of knuckled walking stick. When she came out of the shower, he hit her on the head with the shillelagh. However, rather than forcing himself upon her, he became overwhelmed with the act of clubbing her. Her clubbed her repeatedly as she lay on the floor of her parents’ bedroom. He beat her until she was unconscious and covered with blood. He confessed in court to his crime.

He described to the court and the jury that he had intended to rape the victim, but once she was battered and covered with blood, he stopped. The offender filed an appeal with the Supreme court to overturn his verdict of guild to the attempted rape because the code section states that the man would be guilty of rape in the first degree if he had sexual intercourse by forcible compulsion. In order to attempt to rape, he would have had to attempt some action that would tend to further the commission of the rape. A New York Criminal Lawyer said the offender states that once he began to club the victim, he changed his mind about raping her and that none of his actions were in the effect of a rape. He contends that since the murder itself became the offense that any offense that is connected with rape should be overturned because there were no actions taken in the furtherance of that crime.

Published on: June 29, 2012

Rape Charges Dismissed for Lack of Evidence

by Stephen Bilkis

The man was charged with kidnapping in the second degree, two counts of assault in the second degree, attempted rape in the first degree and attempted sexual abuse in the first degree. The man was also charged with similar counts previously involving another woman but was later dismissed.

Evidently, the only proof of the man’s alleged criminal acts was the testimony of the complainant, who first reported the incident to the police when the police came to interview her in connection with the reported attack on the other woman. The complainant specifically testified that one afternoon, she brought her three children to her neighbor’s apartment because she intended to go to a hospital to fill a prescription. On that event, the man was also there and volunteered to go downstairs to call a taxicab for her. It was about 4:15 P.M. or 4:30 P.M. when the complainant entered the taxicab. A New York Criminal Lawyer said the man then suddenly climbed in behind her and told the driver to pull off and keep driving. The ride lasted more than 10 minutes and maybe about two hours. At the cab, the man told the complainant that she was going to pay for what everyone had done to him. When the complainant responded that she didn’t know what the man was talking about, the man kept repeating that she was paying for what had happened to him and she should shut up. The man then began to hit the complainant about her face with his fists. The man continually assaulted the complainant throughout the ride. At one point, the man struck her in the back of her head with a gun and stated that he would kill the complainant because she was paying for what everybody did to him.

Afterwards, the man also asked the taxicab driver if he wanted to watch him killing the complainant. At another point, the man told the complainant that if she told anyone about what happened in the taxicab he would kill her son. As darkness set in, the ride ended at a vacant parking lot and the complainant could not recall the lot’s exact location but estimated that it was about two miles from her home. At the parking lot, the man pulled the complainant out of the taxicab. A New York Criminal Lawyer said the man again threatened to kill the complainant’s son if she screamed and he invited the taxicab driver to punch the complainant. The taxicab driver punched the complainant in her mouth with his fist. The man continually screamed at the complainant and again struck her in the back of her head with the gun. The man also punched the complainant in her stomach causing her to fall to the ground. As she passed into unconsciousness, the man told the complainant that he was going to rape her. The complainant woke up the next morning and the only clothes left on her was her shirt and socks. She had a lump on her head, her stomach and genitals felt sore, and her legs felt sore, wet and sticky. She found the rest of her clothes strewn about the parking lot.

Published on: June 27, 2012

Defendant Contends Incriminating Evidence Being Used

by Stephen Bilkis

On August 24, 1977, a woman reported to the police that she had been raped that morning. One month after the reported rape, the District Attorney applied to the court to compel the accused to participate in a line up in connection with the investigation of the August 1977 rape. The application was denied by the court.

A year later, on August 24, 1978, another woman from the same town reported a rape in the early morning. She said that a man who drove a Cadillac Eldorado had raped her. She memorized the license plate. The police checked the license plate and it matched the license plate of a Cadillac Eldorado which was reported stolen.

Three hours after the report of the rape, the police found the Cadillac Eldorado parked by the roadside and the accused sleeping inside the car. A New York Criminal Lawyer said he was arrested and taken to the police station. Later that morning, he was arraigned for criminal possession of stolen property. At his arraignment, he was told that he had the right to be represented by a lawyer of his own choosing and if he cannot afford one, a lawyer can be provided for him but the accused refused to be represented by a lawyer.

Published on: June 26, 2012

Issue of Consent Discussed in Rape Charge

by Stephen Bilkis

The Facts:

On 21 May 2008, as amended on 28 May 2008, defendant was convicted by the Supreme Court, Bronx County of rape in the third degree, a criminal law violation. He was sentenced as a second felony offender to a term of 2 to 4 years.

The Ruling:

Published on: June 25, 2012

Defendant Claim Law He Was Convicted of Has Been Repealed

by Stephen Bilkis

In 2007, a man was convicted of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. The case stemmed from an incident that was witnessed by an on duty uniformed police officer in Chemung County, New York. A New York Criminal Lawyer said the police officer was on regular patrol when he stated that he observed a van pull alongside a jeep that was about twenty to 25 vehicle paces in front of him. He testified at trial that he saw a light-skinned male who was wearing a white sweatshirt that had a design on the sleeves. He was wearing a light colored hat. The man leaned out of the passenger side window in the front of the minivan. He fired a pistol at the jeep and sped off when the officer began to chase him. During the pursuit, the passenger in the front of the van jumped out and ran. The officer followed him on foot and apprehended him hiding in bushes a short distance away. He was still wearing the light colored sweatshirt with stripes on the shoulders but he only had on one boot. The missing boot and the hat were located nearby as was a Sig Sauer P-239 9 millimeter pistol. A magazine that fit the weapon was located in a parking lot near the area where the defendant had fled the van. Ballistic testing on the pistol verified that the weapon was operable and that the bullet and casing evidence from the scene were consistent with the test bullets that were fired from that pistol.

Upon apprehension, the defendant stated that he was not the shooter and that the shooter was actually another man who was in the van. A New York Sex Crimes Lawyer said the trial court did not think that the explanation provided by the defendant was reasonable and he was convicted and sentenced to 15 years of imprisonment. One of the contentions that the defendant made when he filed an appeal was that one of the laws that he was convicted of had been repealed before he was sentenced. The law was repealed after he was indicted and before he was sentenced. The court of appeals agreed that this charge on his indictment should have been dismissed prior to the sentencing phase because the law had been changed.

While it may not seem common, it is more common than one would think. Laws are changed and revised every year, during this time of fluctuation in the laws, people are still being stopped and arrested. Long Island Criminal Lawyer said there is usually a time delay in the time between the change of a law, and the enactment of the changes. An officer and sometimes even officers of the court are not notified immediately upon the change of a law. It can be several months from the time that a law is changed to the time that the information on the change in the law reaches the courts and police officers. During that time, people are still being charged and convicted of the offenses. Defense attorneys are necessary to ensure that the defendant does not have to serve time on a charge that was repealed prior to his arrest. It is unreasonable to have a defendant serve time for a conviction on a law that does not exist at the time that his sentence if read. In this case, the defense attorney caught the problem and filed the appeal that enabled the courts to correct the injustice before the defendant spent years in prison for a crime that was not valid at the time of his sentencing.

Published on: June 24, 2012

Defendant Contends Elements of Rape Crime Not Met

by Stephen Bilkis

A man filed a motion for him to file a late notice of explanation. The man’s counsel has established good reason for late filing of the notice which is attached to the moving papers. As explained on the counsel’s letter, a New York Criminal Lawyer said the alleged criminal acts occurred more than two years ago and making the notice of explanation was difficult. The state of New York noted on the record that they do not oppose the request and the notice will be deemed timely and is directed to be filed.

The second and third branches of the man’s motion concern the counts one and two of the accusation. The count one charged the man with predatory sexual assault against a child allegedly committed when the man was more than 18 years old at which he allegedly committed rape in the first degree against a female who was less than 13 years old. The count two charges was the same crime on the same legal theory against the same complainant. A New York Criminal Lawyer said the counts three and four charges were a criminal sexual act in the first degree with the same victim on the same dates as alleged in counts one and two. The count five charges endangering the welfare of a child encompassing all of the conduct charged in count one through four inclusive.

The man’s counsel first argues that the court should reduce the charge in counts one and two with rape in the first degree with the rule of lenity. The counsel notes that the elements of predatory sexual assault against a child are identical to those of rape in the first degree as charged. Counsel said based on records, the predatory sexual assault against a child is a class A-II felony with a mandatory minimum sentence of 10 years to life and a maximum of 25 years to life. By contrast, rape in the first degree is a class B felony, with a mandatory determinate sentence having a minimum of five years and a maximum of 25 years, followed by at least five years of post-release supervision. The two crimes also have different plea bargain restrictions with respect to the offense against a child charge. The plea must be at least to a class C violent felony whereas the man may plead guilty to a class D violent felony in satisfaction of a charge of rape in the first degree.

Published on: June 22, 2012

Defendant Seeks to Change His Sex Offender Status

by Stephen Bilkis

In New York, a system of using an offender’s previous crimes to predict his recidivism rates is used. This system classifies sex offenders into degrees. A New York Criminal Lawyer said that certain offenses will cause the offender to be classified as a higher risk to the public if they are released without tighter supervision. In one case, the offender was convicted on July 29, 1982 for attempted rape in the first degree. This offense is considered a class C felony sex offense under Penal Law §§110.00, 110.05 and §130.35. The Sex Offender Registration Act, requires a hearing be held in the Supreme Court to ensure that the designated level of risk that is assigned to an offender is appropriate as it relates to their offenses. In this case, the court took into account, a previous sex offense that had been committed while the offender was still a juvenile.

The offender’s counsel moved to reduce his sex offender status rating because his juvenile record should have remained sealed and not considered as relevant to the current crime. The court did not agree. They admitted that juvenile offenses are deemed vacated after the offender has been adjudicated and served their sentence, however, when it comes to a prior felony sex crime conviction, the court is reticent to not include it. Just because an offender is a juvenile when he commits the offenses that are included in the Sex Crime Registration Act, it does not preclude the court from considering his prior actions when they determine the risk that he poses to commit the same or similar offense again in the future.

The offender’s counsel petitioned the court to provide a presumptive override to the decision based on the use of the juvenile history in determining the offender’s recidivism rate. The court maintained that Risk Assessment Guidelines that were developed by the Board of Examiners of Sex Offenders found that it was appropriate to utilize all information that may be a predictor to the likelihood that the offender will pose a significant risk to the public safety. The risk points that are allocated are based on the facts that are acquired with review of the offender’s criminal history. Failure to include all information that is available on an offender’s criminal history would skew the results of the guidelines.

Published on: June 22, 2012

Court Hears Motion To Supress Search Warrant

by Stephen Bilkis

On September 25, 2003, the Associate Village Justice of the Supreme Court, issued a search warrant directed to “any police officer of the County of Nassau.” A New York Criminal Lawyer said the search warrant found that there is probable and reasonable cause for the issuance of the warrant to make a search with the inspector and his agents, between 09/25/03 and 10/02/03 in the hours between 6:00 A.M. and 9:00 P.M. of the entire premises in 335 Princeton Street, Westbury, NewYork. The warrant categorically states that the seizure of the evidence shall be limited to the taking of still photographs and videotape pictures of the inside and outside of the premises.

The Senior Building Inspector of the Village of Westbury believed that the subject premises has been used or is being used as a two (2) family dwelling and the cellar is being used as an illegal apartment dwelling in violation of sec. 79-2, sec. 83-6, sec. 112-7, sec. 184-4, sec. 248-6 A and sec. 248-283 of the code of the Village of Westbury and NewYork State Multiple Dwelling Law sec. 30 and sec. 34. A Supervisor in the Department of Public Works testified that the garbage generated from the home was 3 to 4 times the normal amount at every pick up.

Subject to the defendant’s motion to suppress, the parties stipulated to the receipt into evidence of the “return” on the warrant indicating what was seized during the search.

Published on: June 20, 2012

Court Discusses Sex Offender Registration Act

by Stephen Bilkis

On January 21, 1996, the Sex Offender Registration Act was created by the legislative body of the New York State legal system. It provided that each offender who commits a sexually related offense, must be registered with the state as a sex offender. A New York Criminal Lawyer said the risk level that is assigned to each offender is based on that offender’s prior criminal history and the chance that the offender will commit the same or similar offence in the future.

When an offender commits a sexually related offense, they are provided with a hearing date where the facts and circumstances surrounding their most recent conviction are compared with any prior convictions. This comparison is designed to look for trends in behavior that could predict the actions of the offender in the future. Since, no one in the justice department, claims to be a fortune teller, there is no truly accurate measure of whether or not, an offender will commit an offense in the future. Bearing this in mind, the courts must look at the actions that this person has taken in the past. Courts have historically been resistant to including previous criminal activities in the measurement of current convictions. Just because a person has offended in this manner in the past does not necessarily mean that the person committed that crime on that date. A Westchester Criminal Lawyer said this contention of law is why it is not admissible for a prosecutor to discuss the offender’s predilection to commit a particular type of offense in court unless they have received prior approval from the court to do so based on a direct link to the offense that is at trial.

That is not the case when discussing the risk for recidivism of a sexually based offender in the legal system. History can show if an offender has an uncontrollable predilection to committing the offense that he is being tried for. For instance, if an offender has committed ten prior rapes, the chances that he will rape again are logically pretty good. However, if a person was convicted of rape under circumstances that were shaky at best, and it is the only offense that is in the person’s criminal history, he is less likely to commit the same or similar offense again. He is certainly less of a risk than the offender with ten like crimes prior to the conviction of his eleventh offense.