New York

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 30, 2012

Court Discusses Rape Trauma Syndrome

by Stephen Bilkis

Offenses of rape and other sex crimes are clouded by myths that pervade most societies about the causes of rape. For many hundreds of years, the cause of rape was believed to be an overwhelming sexual desire. It has only been in recent years that American society has taken the view that rape is an act of violence against women. When it involves a child, the manner in which the assault affects the child can be even more confusing. One example of this type of confusion occurred in a case that happened in Brooklyn, New York in the early 1980’s.

An eleven year old girl often went to her neighbor’s apartment to play and babysit the neighbor’s smaller children. On one date when she was caring for the children, the neighbor’s boyfriend came home. He was alone with the children for several hours. The eleven year old girl later claimed that the boyfriend had raped her. The rape was not reported until two months later, when the girl told her mother that the boyfriend had come home early again. The second time, she stated that he had kissed her on the mouth and fondled her breasts and bottom. The mother immediately took the girl to the hospital and filed a police report. The doctor’s report substantiated that the girl’s hymen was ruptured. The police arrested the neighbor’s boyfriend for raping the girl.

In the months between the rape and the trial, the little girl was overwhelmed with the situation and wrote several letters to her accused attacker. These letters stated that she was sorry and that she knew that it was not rape. The prosecutor, upon learning of these letters and that the defense intended to use them to impeach the credibility of the child, filed a motion with the court to be allowed to introduce evidence on the effects of rape trauma syndrome. The defense objected to the introduction of this evidence because they claim that the average juror is capable of distinguishing the effects of rape for themselves.

Published on: June 29, 2012

Court Discusses Issues of Discrimination and Equal Protection

by Stephen Bilkis

The Facts:

Sometime in 1977, defendant-one was indicted for the crime of Rape in the Third Degree, a criminal law violation; that defendant, over twenty-one years of age, engaged in a sexual intercourse with a female less than seventeen years of age.

A New York Criminal Lawyer said that sometime in March of 1978, defendant-two was under an eight count indictment; two counts of the indictment charged crimes of Rape in the First Degree; that defendant engaged in sexual intercourse with two females who were less than eleven years old.

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 29, 2012

Court Discusses Corroboration Element of Sex Offenses

by Stephen Bilkis

A man was arrested and charged with the offenses of rape in the first degree, sodomy in the first degree and possession of a dangerous weapon. The offenses were allegedly committed recently after the arrest. In addition, the grand jury failed to indict the man for the rape and sodomy charges, on the ground that there was no corroboration of the complainant’s testimony as to the intercourse, but directed that information be filed on the weapons charge. The information on the possession of a dangerous weapons charge was then filed.

The man however moves to dismiss the information on the ground that the offense of possession of a dangerous weapon requires intent to use unlawfully and the only proof of unlawful intent would be the complainant’s testimony that she was raped. Since there can be no conviction for the allege offense due to lack of corroboration, the man contends that the testimony of the complainant cannot now be used to convict him of the weapons charge.

In order for the court to address itself to the man’s contention, a brief recapitulation of the legislative history of laws pertaining to corroboration is required. However, the court of appeals subsequently overruled the line of cases and held that convictions for the crimes of attempted rape, assault and other offenses related to the offense could not be sustained where the only evidence against the opponent was the uncorroborated testimony that a consummated rape had occurred. Moreover, the reasoning of the court of appeals in the various cases was that the only testimony implicating the man in the non-rape charges was testimony of an actual rape.

Published on: June 29, 2012

Defendant Claims Bringing Up Prior Acts Prejudiced Jury

by Stephen Bilkis

Drug Possession crimes are a problem in every city in the United States, but courts do not usually expect to find them on their own back doorsteps. In the case of the Supreme Court of Bronx County in 1972, they did not expect to find the drug problem on the very steps of the courthouse. However, that is exactly what transpired in September of 1972. An undercover narcotics team was working a case involving a drug ring that was operating out of Franz Segal Park just around the corner from the Bronx County Supreme Court building. The narcotics undercover team made three different purchases of narcotics from the dealer on September 8, 11, and 12.

The undercover officer would meet with the dealer in Franz Park, make the purchase, and then return to the team with the cocaine. The narcotic would be tested to ensure that it was cocaine. The undercover officer was wearing a wire so that the transaction was tape recorded. However, there was no video at the time that was effective in the field. Following the third purchase, the defendant was arrested for trafficking in narcotics. In his trial, he testified that he was not a drug dealer and that he had never sold anyone any drugs. The undercover team had to testify that they had not witnessed the transactions and had only seen the undercover officer leave with the money and come back with the cocaine (cocaine possession).

Interestingly, at trial the prosecutor questioned the officer extensively about the purchases that he made from the defendant in Franz Park. He went in to great detail to show that the time and place of the transaction for which the defendant was charged was identical to the time and place in which he had previously been arrested for dealing drugs. The problem with this line of questioning was that according to the law, prior offenses can only be brought up in trial to show the credibility of the witness. A prosecutor may not use questioning on previous acts to show a propensity to commit the crime that the defendant is on trial. That policy is set forth in People v. Schwartzman, Supra, 24 N.Y.2d p. 247, 299 N.Y.S. 2d p. 822, 247 N.E.2d p. 645. The crimes for which the prosecutor was referring were the two prior drug deals that were under indictment, yet not adjudicated by the time of the trial in question.

Published on: June 28, 2012

Court Discusses Crime of Rape in the Third Degree

by Stephen Bilkis

The Facts:

Defendant was charged with robbery, larceny, assault (two counts), endangering the welfare of a child, and sexual abuse in the third degree; a six-count indictment on criminal law violations.

A New York Criminal Lawyer said these the crimes were allegedly committed on 26 September 1967, the prosecution was under the new Penal Law, which was enacted in 1965, effective as of 1 September 1967.

Published on: June 28, 2012

Rape Trauma Syndrome Discussed by Appellate Court

by Stephen Bilkis

The Facts:

On 10 September 1988, the victim, a married college professor, was driving from her home to a family wedding when, at about 7:30 P.M., she was stopped on the Northway by defendant, then a uniformed State Trooper. At defendant’s request, she gave him her license and registration. Defendant told her she was driving erratically and had failed to signal a lane change properly. He instructed her to leave her car, walk a straight line, and then enter the passenger seat of the patrol car, where he told her she could be in serious trouble, including DWI charges, and would have to blow in his face as a sobriety test. While she was doing this a second time, at defendant’s behest, he put his mouth on hers, began fondling her, and told her he was going to make it or do it with her, but first had to go to State Police barracks for a condom. The victim followed defendant to the barracks in her own car, though he retained her license and registration. She testified that she remained terrified throughout this entire period believing that, with defendant armed, any escape attempt in an unfamiliar area would be futile and even fatal.

At the barracks, defendant placed the victim in the police car, instructing her to remain there while he went inside. She testified that she was still frozen with fear, not knowing whether defendant had friends in the barracks who knew what he was doing. On his return, they drove off while the victim, believing it vital to her safety, engaged defendant in conversation. When they reached a secluded area, defendant, still armed, sexually attacked her. He thereafter returned with her to the barracks and allowed her to proceed to her destination, where she explained to the wedding guests that she was late because of a car trouble. On her return home, after being unable to eat or sleep for two days, and overcoming her fear that defendant would harm her, the victim contacted a local rape crisis center, which ultimately led to a report to the State Police, an investigation, and defendant’s arrest.

Published on: June 28, 2012

Court Decides if Prior Convictions Should be Considered Felonies

by Stephen Bilkis

The Facts:

Defendant has been found guilty of assault in the second degree, with intent to rape. He is now before the court for sentencing.

A New York Sex Crimes Lawyer said that a “prior offense” Information has been filed by the District Attorney which alleges that the defendant is now a second felony offender by reason of the fact that he was previously convicted, after trial, in the Commonwealth of Pennsylvania, of three crimes, viz.: aggravated assault and battery, assault with intent to ravish and rape.

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.