New York

Published on: May 31, 2012

Defendant Contends Penal Law Unconstitutional

by Stephen Bilkis

The complainants, a prostitute and a patron seek a judgment declaring sections of the Penal Law unconstitutional. The laws prohibit prostitution and patronizing a prostitute.

A New York Criminal Lawyer said the action was commenced and the opponents, the City Mayor and the City Police Commissioner moved to dismiss on the ground that the prostitute and the patron lacked standing. Another opponent, the County District Attorney moved to dismiss on the same ground and also that the complaint failed to state a cause of action. The complaint was dismissed for failure to state a cause of action with leave to re-plead. The complainants filed an amended complaint and all the opponents moved to dismiss on the same grounds alleged by the District Attorney after the first complaint was filed. The complainants filed a cross motion for summary judgment. Before deciding the motions, the Court determined whether any of the prior rulings are LAW OF THE CASE.

The Law of the Case doctrine is a kind of intro-action res judicata or matter that was already settled and cannot be raised again. Within the framework of a single action, it prevents re-litigation of a point already adjudicated in it.

Published on: May 31, 2012

Defendant Contends He Was Not Given Psychiatric Evaluation

by Stephen Bilkis

A man was arrested for alleged acts of sodomy with a 12-year-old male child and was indicted on five counts, all involving such acts. He pleaded not guilty. Although the record is incomplete as to the various steps which were taken thereafter, it is clear that the man was sent to the Hospital for some form of psychiatric examination and was reported insane. A New York Sex Crimes Lawyer said the County Court thereupon committed him to the State Hospital. Almost two years later, he was returned to the County Court, certified as sane, and he withdrew his plea of not guilty and pleaded guilty to the fourth count of the indictment charging him with sexual assault with intent to commit the crime of sodomy. He was once again sent to the County Hospital for observation with pending sentence. The record contains no report or certificate from the Hospital indicating that the man received a psychiatric examination pursuant to the Penal Law, and there is no proof that the Court had or considered such a report before it sentenced the man. The record show that on April 6, 1955, upon motion of the man’s retained counsel, the report of the Psychiatric Division of the County Hospital, finding the man sane is confirmed. On May 16, 1955, the County Court ordered that the man be imprisoned in the State Prison at hard labor, under an indeterminate sentence, the maximum of such imprisonment to be his natural life and the minimum thereof one day. It is not contradicted that the year the man was sent to the State Prison’s psychiatric clinic that prison was closed after having been in operation for more than four years. The record does not disclose when the man was transferred from the State Prison to Attica Prison where he is presently held. The claim of the man’s counsel that Attica Prison does not have nor has ever had any facility for psychiatric treatment during the time of the man’s confinement therein is not refuted.

The man’s contention that he was not given a psychiatric examination pursuant to Penal Law was not explored at the County Court hearing. The man’s assertion that the report of the County Hospital made after his guilty plea does not disclose that the man was a psycho path or of violent character and was bare of any descriptive sexual abnormality finds support in the only record from that court dealing with the subject which simply confirmed a finding that the accused is sane. The notation supports the probability that the examination was in compliance with the Code of Criminal Procedure, indicating the man’s capability of understanding the charge and making his defense, rather than in compliance with Penal Law.

If the further hearing should confirm the man’s position, the Court is constrained to remit the matter to the County Court for proceedings consistent with the memorandum which specifically provides that no person shall receive the indeterminate sentence until a psychiatric examination shall have been made of him and a complete written report thereof shall have been submitted to the court. A New York Sex Crimes Lawyer said the statute requires such an examination in every case in which a sentence of from one day to life may be imposed, regardless of whether such a sentence is in fact imposed.

Published on: May 30, 2012

Defendant Claims Plaintiff Recanted Her Statement

by Stephen Bilkis

The Facts:

Defendant, who was then 24 years old, had known the complaining witness, then 20 years old, for several years. Allegedly, on 24 April 1976, at the complaining witness’s home, following a visit with the complainant’s family and defendant’s mother, defendant told the complainant that he wanted to have sex, and upon her refusal, he forced her to engage in intercourse. A New York Criminal Lawyer said the complainant was later taken to a Hospital for examination, which was negative for the presence of semen.

On 28 April 1976, the complaining witness identified defendant to the police, in front of the complaining witness’s home, and defendant was arrested. In statements following the arrest, defendant admitted having had intercourse with the complainant but denied having used force. He claimed that the complainant had been angry over the fact that defendant had been seeing another woman.

Published on: May 30, 2012

Son Sexually Attacks Mother, Mother Accused of Sexual Abuse

by Stephen Bilkis

A woman who was originally from the Dominican Republic had a son whom she left in the Dominican Republic when she migrated to the United States. She obtained permanent residence status when she married an American citizen with whom she had two other children.

A New York Criminal Lawyer said she was then able to send for her son from the Dominican Republic. He first stayed with his father’s relatives in Florida but later on he moved in with his mother at the house she shared with her American husband and their two children.

Sometime on December 31, 2007, the mother, the son and the stepfather attended a party where they all had quite a bit to drink. The son, who was then 14 years old drank rum at that party they attended. When they came home, the stepfather stayed in the living room to watch television.

Published on: May 30, 2012

Defendant Contends Grand Jury Indictment

by Stephen Bilkis

A New York Sex Crimes Lawyer said a man was convicted of rape, a sex crime, in South Carolina sometime in October 19, 1992. He was sentenced to a prison term and he has fully served his prison sentence. During his incarceration, the Sex Offender Registration Act was enacted which requires all convicted sex offenders to register their address within ten (10) days from changing one’s address. The man was designated as a level three sex offender. After his release, the man failed to verify his new address with the local law enforcement agency. He was charged with a violation of the Correction Law, that is, that he failed to register as a sex offender.

When he moved from South Carolina to the state of New York in July 6, 1999, after his release, he registered as a sex offender in New York. A New York Sex Crimes Lawyer said that sometime on November 12, 2002, the man changed his address from New York to Hoboken, New Jersey. He notified the Division of Criminal Justice Services of this change of address. After this, the Division of Criminal Justice Services has not received any other change of address from the man until July 2006.

Evidence has been acquired by the local law enforcement in Kings County that the convicted men changed residences from New Jersey back to King’s County in New York. He first lived on Herkimer Street and about two months later, moved from Herkimer Street to Gates Avenue but he did not inform the police of this change of address nor did he notify the Division of Criminal Justice Services.

Published on: May 29, 2012

Defendant Claims Court Lacked Jurisdiction for Order for Protection

by Stephen Bilkis

On this proceeding, a man filed an appeal from a judgment convicting him of burglary in the second degree, criminal contempt in the first degree and second degree, upon his plea of guilty.

The offense happened on the last quarter of 2004 when the man assaulted his former girlfriend on several occasions. A New York Criminal Lawyer said he broke into his girlfriend’s apartment, repeatedly harassed the woman and stalked her in violation of temporary orders of protection. Consequently, the man was charged in two separate accusations with multiple crimes, including burglary in the second degree, attempted assault in the third degree, criminal contempt in the first degree and second degree, aggravated harassment in the second degree, stalking in the fourth degree, and menacing in the second degree. Afterwards, the separate accusations were consolidated. The man also agreed to plead guilty to burglary and criminal contempt. Based on records, in exchange of the man’s claim, the Supreme Court promised him that if he completed the treatment alternatives to street crimes drug program they will leave his plea to burglary in the second degree and sentence him to concurrent terms of five years’ probation for criminal contempt in the first degree and second degree. However, the Supreme Court warned the man that if he failed to complete drug treatment, his plea to burglary in the second degree would stand, and he would be sentenced to a determinate term of seven years of imprisonment and a period of five years of post release supervision for that offense.

The man then acknowledged that he understood the arrangement. The man give up his right to a jury trial, his right to cross- examine witnesses, and his right to testify on his own behalf if he wished to do so. Immediately after the man acknowledged that he was giving up his rights, the Supreme Court briefly addressed the issue of a waiver of the right to appeal. A Brooklyn Criminal Lawyer said that it explained that if the man were tried and convicted, he would have the right to appeal the conviction but he already give up his right. The Supreme Court further asked the man whether he was willing to give up all his rights and any other rights he had and plead guilty and the man answered yes. The man then admitted that he entered unlawfully and remained unlawfully in the victim’s dwelling, that he was aware that she had obtained an order of protection against him, and that he had violated that order of protection.

Published on: May 29, 2012

Court Discusses the Crime of Predatory Sexual Assault

by Stephen Bilkis

The indictment alleges that on May 2, 2011, the man forcibly compelled the complaining witness to perform oral sex upon him. A New York Criminal Lawyer said that according to the indictment, the man then forcibly subjected the woman to anal intercourse. The indictment further alleges that, on May 14, 2011, the man forcibly touched the breasts of complaining witness with his hands and mouth. According to the indictment, the man also forcibly compelled the complainant woman to perform oral sex upon him and then forcibly subjected her to vaginal intercourse.

The man’s motion to inspect the Grand Jury minutes was granted. Upon review of the Grand Jury minutes, questions pertaining to the counts of Predatory Sexual Assault were raised by the court. Following oral argument, the Jury dismissed four of the indictment, each charging Predatory Sexual Assault, as they related to the underlying offenses committed on May 2, 2011. A New York Criminal Lawyer said the man moves for dismissal of the remaining indictment, each charging Predatory Sexual Assault, as they relate to the underlying offenses committed on May 14, 2011, on the following grounds that the remaining counts of Predatory Sexual Assault, as they appear in the indictment, fail to state a crime or offense; the remaining counts of Predatory Sexual Assault cannot be legally amended; the Predatory Sexual Assault statute was enacted to penalize recidivist behavior; and the Jury’s intended use of the Predatory Sexual Assault statute violates man’s due process rights.

The Jury contends that their intended use of the Predatory Sexual Assault statute is appropriate and that the remaining indictments were properly charged to the Grand Jury and correctly worded in the indictment. The man’s motion to dismiss was denied from the bench.

Published on: May 29, 2012

Court Confirms Probable Cause for Defendant’s Arrest

by Stephen Bilkis

In the early morning hours of May 11, 2004, near Sheridan Avenue in Brooklyn, the man accosted the woman, grabbed her around the neck, pointed a knife at her, and demanded money. When she told him that she had none, he pulled her into a nearby yard and raped her at knifepoint. A New York Sex Crimes Lawyer said approximately one week after the sex crime, the complainant woman identified the man in a lineup, the fairness of which has never been challenged. The grand jury returned an indictment charging the man with rape in the first degree, sex abuse in the first degree, sexual misconduct, attempted robbery in the first degree, two counts of assault in the second degree, two counts of assault in the third degree, and criminal possession of a weapon in the fourth degree. He sought suppression of the woman’s potential identification testimony on the ground that, prior to the lineup, the police lacked probable cause to arrest him for the criminal acts committed against the woman.

At the hearing, two retired detectives who had been assigned to the Special Victims Squad testified for the court; the man offered no evidence. The detectives testified that they were assigned to the investigation of the criminal acts. A New York Sex Crimes Lawyer said that two days after the incident, one of the detectives interviewed a person who had been working as a security guard in the vicinity of the incident on the date and at the approximate time it occurred. He told detective that he had seen a man in the area whom he recognized as someone who lived in his neighborhood and had played on the basketball team in a school. The man matched the general description of the assailant provided by the complainant woman. The witness accompanied the detective to a school and looked through three or four school yearbooks. In the 2002 yearbook, he came upon the man’s photograph, pointed to it and identified the man.

A Nassau County Sex Crimes Lawyer said as a result of that identification, the other detective put out what is called an inquiry card with reference to the man, that if he’s stopped, apprehended or identified, the detective’s office would be notified. On May 18, 2004, only one week after the sex crime, the detective was notified that the man was arrested in Queens. The detective had the man transported to Brooklyn and, when he arrived, his supervisor arrested him for the rape. He arranged for the man to stand in a lineup, and had the complainant brought to the precinct station house. She viewed the lineup and identified the man as her attacker.

Published on: May 29, 2012

Court Discusses the SORA act

by Stephen Bilkis

The Facts:

On 15 November 1988, the respondent was arrested in Kings County and subsequently indicted for robbery in the first degree and related offenses. A New York Drug Possession Lawyer said on 15 November 1989, he entered a plea of guilty to attempted robbery in the first degree. Sentencing was scheduled for 9 January 1990, at which time the respondent failed to appear and a warrant was ordered.

Subsequent to the issuance of the Kings County warrant, the respondent was arrested in North Carolina and charged with having sexual contact with four children. A New York Drug Possession Lawyer said on 25 January 1991, following a three-day trial, he was convicted of one count of first degree sex offense and related charges and was sentenced to life in prison.

Published on: May 27, 2012

Defendant Seeks to Lower his Risk Assessment Level

by Stephen Bilkis

This case is being heard in the Second Department Appellate Division of the Supreme Court of the State of New York. The appellant of the case is Robert Fareira. The appellant is represented by Steven Banks, New York, New York, with Joanne Legano Ross for counsel. The respondent of the case is the People of the State of New York. A New York Criminal Lawyer said the respondent is represented by the Brooklyn, New York District Attorney, Charles J. Hynes with Leonard Joblove and Morgan J. Dennehy for counsel and Leah Rabinowitz on the brief for the case.

Appeal

The appellant, Robert Fareira, is appealing an order that was made by the Kings County Supreme Court on the 29th of April in the year 2009. The order designated the defendant as a level three sex offender according to the Correction Law, article 6-C.