New York

Published on: June 27, 2012

Court Discusses Probable Cause for Blood Sample

by Stephen Bilkis

In August 1991, two police officers from Yonkers, New York were sent to investigate a reported rape and robbery which occurred in an apartment building. A New York Sex Crimes Lawyer said the woman who claimed to have been raped told the detectives that she was raped at knifepoint. She gave the description of her attacker to the police including the attacker’s physical traits such as his height, approximate age, his body build, the clothes he wore, his race and even the way he smelled.

The detectives went to the basement of the building where the garbage chute emptied out into a dumpster and found clothes similar to the clothes described as worn by the attacker of the woman. A New York Sex Crimes Lawyer said near the dumpster there were also found some surgical gloves, a white panty hose tied in knots and a knife.

The police detectives asked the residents of the building if they knew any person in the building who fit the description given by the woman who was raped and they were led to the apartment of the accused.

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 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 26, 2012

Court Discusses Offense of 3d Degree Sexual Abuse

by Stephen Bilkis

The Facts:

According to a New York Sex Crimes Lawyer, the 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.

As 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 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 25, 2012

The Extent of Plaintiff’s Resistence During Rape Discussed by Court

by Stephen Bilkis

The accused, a bachelor of approximately thirty-seven years of age met an incoming plane at LaGuardia Airport, from which disembarked a twenty-year-old petite, attractive second-year student woman, an unworldly girl, evidently unacquainted with New York City and the sophisticated city ways, a girl who proved to be, as indicated by the testimony, incredibly gullible, trusting and naive.

A New York Sex Crimes Lawyer said the testimony indicates that the accused struck up a conversation with her, posing as a psychologist doing a magazine article and using a name that was not his, inducing the woman to answer questions for an interview.

The evidence further shows that the accused invited the complainant woman to accompany him in an automobile to the Grand Central Station in Manhattan. They were accompanied in the automobile by other persons, some of whom were introduced by the accused as colleagues on a professional basis. There were numerous detours before they found their way to the Grand Central Station. First, they were taken to an apartment on the east side where some of the parties were left behind.

Published on: June 24, 2012

Defedant Seeks to Have New Parole Hearing

by Stephen Bilkis

On November 17, 1990, a thirty-two year old plumber who was married with three children lived on West 143rd Street in Manhattan. At around 6:43 in the evening, the plumber met his brother’s wife’s boyfriend in front of 225 West 129th Street. The began to argue. They parted and went their separate ways. Later that night, the plumber and the boyfriend ran into each other again. This time, the boyfriend had another man with him. They were in a park near West 129th Street in Manhattan.

During this confrontation, a New York Criminal Lawyer said the boyfriend punched the plumber in the face. He fell to the ground and pulled out a handgun that he possessed a target license to carry. He fired at the boyfriend from his position on the ground. The boyfriend was struck in his chest and was killed. The plumber left the area, but later turned himself in to the police on November 26, 1990. The plumber stated that the shooting occurred in self-defense. He stated that when he was on the ground, he believed that the boyfriend was going to shoot him. He stated that he only shot him to prevent being shot. The police reports of the incident indicated that the boyfriend was not armed at the time of the shooting. The defendant plumber claimed that in 1982, the plumber had been shot by another man in a vehicle accident because the other man had hit his parked car. The plumber was shot twice during that incident after the other man went back to his own car to obtain his registration and insurance paperwork. When he returned to the plumber’s vehicle, he had a gun and shot him twice. In that incident, when the plumber was incapacitated on the ground, the other man attempted to shoot him again at close range. The gun misfired and the plumber’s life was spared. The plumber stated that the way that the boyfriend moved and his mannerisms, along with the 1982 history, made him believe that the boyfriend was in possession of a weapon and that he intended to use it.

The plumber did not have any criminal history, and at trial the Assistant District Attorney requested that he be sentenced to the minimum sentence required for his offense. That sentence would have been fifteen years to life. He was first eligible for parole in 2005. He was not a problem when he was in prison and did not have any disciplinary reports in his file. He worked during his prison term as a plumber’s helper in the maintenance department. He also worked as a program aide for the disabled and as a metal fabricator in the industries work area. He completed his high school equivalency degree and obtained an associate of arts of religious education college degree. A Brooklyn Criminal Lawyer said he also attended several behavioral and psychological programs to reduce his risk of recidivism upon release. These programs included Violence/Aggressive Behavior Programs, Basic Parenting, Hispanic Needs Program to Eradicate Violent Behavior.

Published on: June 24, 2012

Defendant Claims Rape of Wife Was Allowable Due to Marriage

by Stephen Bilkis

The Facts:

On 7 June 1982, defendant and his wife separated after fourteen years of marriage. Defendant moved out of their marital residence and rented an apartment.

A New York Criminal Lawyer said that on 3 November 1982, defendant was summoned and appeared before the Family Court to answer charges that he harassed his estranged wife. A Temporary Order of Protection was issued.

Published on: June 24, 2012

Court Finds Insufficient Evidence for Grand Jury Indictment of Rape

by Stephen Bilkis

The Facts:

Two male persons, defendants, forcibly abducted the victim (of the assaults) in an automobile. While being carried away in the car, the victim was given a choice of either participating in sodomy or submitting to rape but refused either alternative. A New York Sex Crimes Lawyer said after having been slapped around and frustrated in an attempt to escape, she was raped by each defendant, in turn, while the other held a knife-point to her throat and threatened to cut her if she didn’t stop screaming. Nevertheless, she resisted, but in vain. She was not examined by a doctor until 10 August 1965 and the police were not notified until 12 August 1965. She made no immediate disclosure to her parents although, within a day or two after the event, she told a neighbor about it. Other than the victim’s own testimony, there is no evidence that she was abducted by anyone, or that she was in the company of these defendants on the occasion in question or that at or about the time of the occurrences narrated by her, she bore visible marks of recent physical violence or rape.

A New York Sex Crimes Lawyer said the defendants were apprehended and questioned but denied having been in the girl’s company on the evening in question and specifically denied the charges made. There was no evidence that any knife was found or that either of the defendants had been known to possess one.

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.