New York

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

Defendant Contends Incriminating Evidence From Prior Conviction Should Not be Included

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 New York Criminal Lawyer said 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. 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 24, 2012

Court Discusses Rape Shield Law

by Stephen Bilkis

A female college student from Columbia University surfed the net looking for other Columbia students with whom she can chat. She began an online conversation through email with the accused who was also a student from Columbia University.

The accused shared his interests in the occult and the bizarre. He mentioned his fascination with a known photographer who used corpses for models. The woman shared her fascination with snuff films (pornographic films where the female is shown being slain by the person who was raping her). She and the accused began talking of possible plots for snuff films that they would create.

Two months of emails, chatting, instant messaging passed until the woman shared her phone number with the guy and he called her. They had several long phone conversations.

Published on: June 24, 2012

Court Decides if Rape Trauma Syndrome Applies

by Stephen Bilkis

The Facts:

Defendant is charged with two counts of grand larceny in the third degree arising out of a homosexual incident between the complainant and defendant.

The People allege that the incident was consensual in nature and that defendant thereafter extorted money from the complainant by threatening to expose him as a homosexual and to bring charges of homosexual rape.

Published on: June 23, 2012

Court Discusses Possible 5th Amendment Violation

by Stephen Bilkis

Decisions to protect the public from a person who is violently mentally ill can create many fundamental issues of law and civil rights. This legal quandary has been a puzzlement for Americans since our country began. Freedom to live our lives without the fear of the Federal Government removing our freedom without the benefit of a trial before a jury of our peers is fundamental to our belief systems. However, there are times that we must question the benefit of releasing someone who will almost definitely commit a violent crime if they are ever released from an institution. On May 26, 2011 the Supreme Court of New York held a probable cause hearing to determine if a man who was a detained sex offender should remain incarcerated after his pending release date because of his need for civil management.

The Mental Hygiene Law of New York provided the government with a means to deprive citizens of their right to freedom if they were determined to be a threat to themselves or others based on their mental health. Section 10.06(k) of the Mental Hygiene Law does not provide a different rating for sex offenders (sex crimes) who are dangerous and those who are not when recommending civil management. Once an offender has been determined a sex offender who may require civil management, the only requirement is probable cause to detain the subject post release or pre-trial.

The case that was brought before the court in 2011, disclosed that this law was possibly an affront to the United States Constitution. As such, the attorney for the defendant, filed a motion for the Supreme Court to review the Constitutionality of the law under the Fifth Amendment to the United States Constitution. The Supreme Court examined the conditions of the case. The case involves a man who is detained as a sex offender pending an trial for additional crimes. The trial court in his preliminary hearing found him to be in need of evaluation by the State Office of Mental Health. After the OMH review, it was recommended that the defendant be released from detention under appropriate supervision and treatment into the community pending a hearing of his case. The judge determined that the severity of the charges and the risk to the community was too severe to allow for the release of the defendant pending trial.

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 21, 2012

Potential Juror Misconduct Reviewed In Sex Crimes Case

by Stephen Bilkis

It is difficult to understand the immensity of the responsibility that serving on a jury can be for some people. In this age of electronic information obtainable on the internet and even on a person’s telephone, it can be a daunting task for a juror to follow the instructions provided by the judge and make a determination only on the information that is presented in the courtroom. It is no surprise then when a juror is found guilty of misconduct for investigating a case on their own to attempt to help them make their decisions. As students, we are all taught to research a topic before we can make an informed opinion and not to rely solely on information that is provided by word of mouth. A New York Criminal Lawyer said when assigned to a jury and told that they are not allowed to make an informed decision based on research, many can feel lost and compelled to research the case on their own. This was the case, with one juror who was sitting on a non-sequestered jury, hearing the details of a serial sex crime offender’s case (rape). During the trial, the woman went to dinner with several friends and their acquaintances.

At that dinner, the woman brought up some of the details of the case that she was sitting on the jury for. She stated that the case was about a teen aged defendant who had cut up and raped a woman as part of a gang initiation. She allegedly stated that she had made up her mind about the defendant and his guilt in the situation. However, she stated that she knew she had a duty to deliberate the case with the other jurors before she actually made up her mind. She stated that the jury was a diverse group of people and she would need to hear what everyone had to say about the situation. She was unaware that one of the dinner guests was a defense attorney until later that night when they were walking to the train station. As they were walking, the woman talked to the attorney and found out that she was a defense attorney. The woman asked the attorney what she thought about DNA evidence because she had Googled the defense attorney involved in the case on her computer and discovered that he had a private practice. She asked pointed questions about DNA evidence and if she had ever had an opportunity to represent anyone who had their DNA match a crime several years after the offense had occurred.

The defense attorney informed her that it was not appropriate to discuss the case and that she could not answer the question for her. A Manhttan Criminal Lawyer said that the juror told the attorney that all of the information was in, but that the jury had not received the charge yet. The attorney attempted to change the subject. The following Monday morning, the defense attorney who worked for Legal Aid discussed the situation with her supervisor and her supervisor contacted the defense attorney who was handling the case. It was several days later before the chain of phone calls got to the correct people. By that time, the defendant had been convicted of the crime. As soon as the defense attorney for the defendant learned of the juror’s impropriety, he filed a motion for a mistrial on the case.

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.

Published on: June 18, 2012

Error Occurs in Collection of Evidence

by Stephen Bilkis

Often, questions arise in the court system that involve how to handle mistakes that happen in the justice system. Among these mistakes can be the mishandling of evidence. A New York Criminal Lawyer said that while losing evidence can be a devastating blow to a prosecution’s case, it is even more so when it in involves a sexual abuse crime. The physical evidence that is collected in a rape kit cannot be replaced if the kit is lost or mishandled. Unfortunately, it happens more often than the departments involved would like to admit. Large city departments have the biggest problem with ensuring that the chain of custody is kept pure.

In one case, that occurred on October 18, 1991, involved a rape. The victim was forced into the apartment and bedroom of an acquaintance where he pulled a gun on her. He forced her to have sexual intercourse with him. She reported the rape to the police in Queens County. The police officers transported her to Queens Hospital Center where she was examined by a doctor and a rape kit was completed. The offender was arrested on November 5, 1991 when he reported to his parole officer.

On January 2, 1992, the defense lawyer made an omnibus motion requesting the information that was recovered from the examination of the rape kit. He was advised that the rape kit evidence would be provided as soon as it was examined. On April 16, 1992,the defense team again requested an opportunity to examine the rape kit and the resulting laboratory analysis. Again, the police evidence unit stated that the results should come in shortly. The results were never given to the defense. After several failed attempts to obtain a copy of the analysis of the evidence, the police evidence unit finally admitted that the rape kit had been misplaced. They stated that after researching the whereabouts of the rape kit, it was discovered that the kit had never been submitted to the police department crime lab for analysis.

Published on: June 1, 2012

Defendant Charged with Sexual Abuse of Minor

by Stephen Bilkis

In January 20, 2002, a woman was living in with her fiancé who was then thirty-nine years old. The woman’s mother and 13 year old sister came over to visit them and they stayed in the same house that the woman shared with her fiancé.

A New York Criminal Lawyer said that while the 13-year old sister was visiting, the fiancé assaulted the 13 year old. He committed sodomy by inserting his male organ into the young child’s anus (rape). The man was charged with sodomy, sexual abuse and endangering the welfare of a child. He was found guilty by a jury and the trial court sentenced him to a prison term of two to six years.

After he was convicted and sentenced, the man moved to set aside the jury verdict. He claims that his right to a fair trial was violated when the panty of the 13 year old was admitted into evidence even if the panty was recovered by the police thirty-seven days after the date of the commission of the offense. He claims that the panty should not have been admitted into evidence as it was not shown clearly by the prosecution that it had not been contaminated when it stayed in the clothes hamper in the apartment of the child’s sister for thirty-seven days where it could have been wet or degraded. A Long Island Criminal Lawyer said he also claims that the lawyer who defended him was ineffective. He claims that his lawyer failed to cross-examine the forensic scientists and experts presented by the prosecution. He claims that his counsel failed to present experts to rebut the claims of the experts presented by the prosecution. He further claims that his conviction should be vacated because the prosecution hid evidence that would have exculpated him.