Articles Posted in Sex Crimes

In the case at bar, the criminal court assumes the most stringent standard in People v Vilardi, that is, the “reasonable possibility” standard to apply.

Defendant’s contention fails because of the lack of evidence that DM’s suspicion predated his decision to accuse defendant and to cooperate with the D.A.’s office. There was no evidence at the hearing that on 27 February 2006, DM harbored either the suspicion suggested to him by F or the suspicion that defendant purposely set him up for a violation of probation. The defense post-hearing memorandum recognizes the crucial importance of this evidence; without it, the Brady violation is not material.

At trial, the major argument in the defense summation about DM and CB’s motive began with the proposition that once they made up the story there was no taking it back but then on 27 February 2006, he completely abruptly changed his story. The real motive at issue at trial, from the defense point of view, was the one at the time DM first made his accusation. Subsequent motivations were of course relevant, but diluted by the prior consistent accusation, made on February 27.

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The defendant was convicted after a jury trial of Kidnapping in the First Degree, Rape in the First Degree (five counts), Sodomy in the First Degree (four counts), Robbery in the Third Degree, and Assault in the Second Degree. He was sentenced to an aggregate indeterminate term of incarceration amounting to 119 1/2 years to life.

The defendant appealed the convictions and by order, the convictions were affirmed by the Appellate Division, Second Department. The defendant then appealed to the Court of Appeals which unanimously affirmed the order of the Appellate Division.

The charges arose out of an incident which took place on May 23, 1992. Although this court did not preside over the trial, the facts have been gleaned from the affirmations submitted with the motions, from the records contained in the court file, and from the decisions of the appellate courts.

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This is a proceeding wherein the defendant has moved for relief pursuant to C.P.L. §440.10(1)(b),(c),(f),(g) and (h). She was convicted after a jury trial of one count of sodomy in the second degree, one count of sodomy in the third degree (both as to complainant CB), bribing a witness (DM), and four counts each of criminal impersonation and falsely reporting an incident. The jury acquitted with respect to a second bribery charge and a charge of tampering with a witness both relating to DM and was unable to reach a unanimous verdict as to alleged sexual offenses against DM.

The court denies the motion to vacate judgment.

In November 1082, CB was born. According to his testimony, defendant’s sex relationship with her began when he was thirteen, as he was graduating from the Montessori school owned by defendant’s family. Defendant, on the other hand, argued that her sexual relationship with CB began only after he reached the age of consent. According to DM, defendant’s sexual relationship with him began in 2001, when he was twelve, shortly after he arrived at the school. DM left the school in March 2002.

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A boy, 10 years old, had just finished his lunch, his mother had left the room to go visiting and he was all alone in their fifth floor apartment watching television. He heard a scream and, as he looked out the living room window onto the third floor roof of the adjacent building, some 50-100 feet away, he saw a man wearing blue Lee pants and a plaid shirt, dragging a little baby across the roof. As he watched, they disappeared for a few minutes behind an incinerator but soon reappeared and as he looked on the man pushed the now naked child off the roof and then ran back into the building.

A Queens County Rape lawyer said that within five or six minutes, according to his testimony, the boy saw Housing Authority Police Officers, whom he knew, arrive at the scene on the third floor roof and, at his call, they came over to the apartment and questioned the boy. In substance the tragic events he had just witnessed and offered a description of the perpetrator that he repeated the following day to New York City Police Detective of the Queens Sex crime Squad. That description would fit innumerable young black males, but is at substantial variance with the actual physical appearance of the defendant, who at the time, was 35 years old and who then wore a large “wild” Afro hair style “sticking all up” in a very unruly and lewd messy fashion.

In the days that followed, the boy was interviewed at both the local police precinct where he viewed police photographs on a machine and at another location in the county. He did not, however, recant the description he had given, but instead said that he did not know the perpetrator’s name, and, in fact, told Detective twice that he had never seen the perpetrator before.

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This proceeding was originated by the Petition for a Writ of Habeas Corpus of JKB, filed in the Franklin County Clerk’s office on 30 March 2010. Petitioner, who is an inmate at the Bare Hill Correctional Facility, purported to challenge his continued incarceration in the custody of the New York State Department of Correctional Services. More specifically, petitioner asserted that the delinquent time assessment imposed following his 5 November 2008 final parole revocation hearing expired on 17 February 2010.

On 2 April 2010, the Court issued an Order to Show Cause on and as a part thereof petitioner’s habeas corpus proceeding was converted into a proceeding for judgment pursuant to Article 78 of the CPLR. On 27 April 2010, an Amended Order to Show Cause was issued. The Court has since received and reviewed respondents’ Answer verified on 28 May 2010. By Letter Order dated 8 June 2010 petitioner’s application for judgment on default was denied.

Correspondence from petitioner in the nature of a Reply, dated 7 June 2010, was received directly in chambers on 9 June 2010.

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It is the defendant’s argument that the proposed amendment would, indeed, change the theory of the prosecution because the indictment specifies CB as the specific person about whose “race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation” the defendant had formed beliefs or perceptions which allegedly motivated the underlying crime of Criminal Mischief.

Further, the defendant claims that the Sex Crimes statute, Penal Law section 485.05, specifies that the hate crime “must be directed at a person.” Hinged on that ground, the defendant argues that the focus of a hate crime is limited to single, specific individual not a group of individuals unless it is directed at an entity or organization that is homogeneous in nature.

Section 485.05 (1) (b) of the Penal Law provides, in pertinent part:

The People move pursuant to Criminal Procedure Law section 200.70 for an order permitting amendment of count one of the instant indictment so that the words “CB” are replaced with “CB as legal custodian for and acting in loco parentis on behalf of the minority student population at PS 256” by submitting the bare affirmation of GF, dated 27 January 2006, without any Notice of Motion,

The defendant submits the response of RN, dated 11 March 2006, in opposition to the relief sought by the People and cross-moves to dismiss count one of the indictment, also without the appropriate notice of motion. Neither party has raised any procedural objection to the form of the motion papers themselves.

Accordingly, this issue will be overlooked by the Court.

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A Queens Criminal Lawyer said that, respondent who was adjudicated to be a juvenile delinquent by order dated March 11, 2011, has moved for an order pursuant to Family Court Act §355.1 vacating the adjudication of juvenile delinquency and the order of disposition entered on November 30, 2010, and for the entry of an order adjourning this proceeding in contemplation of dismissal pursuant to Family Court Act §315.3. Alternatively, respondent has moved for an order to seal the record of the juvenile delinquency proceeding pursuant to Family Court Act §372.2.

A Queens Sex Crime Lawyer said that, by petition filed pursuant to Family Court Act §310.1 (1) on October 6, 2010, was alleged to have committed acts which, were he an adult, would have constituted the crime of Criminal Sexual Act in the Third Degree. On November 30, 2010 the petition was amended upon consent of the parties to add a second count, charging respondent with committing an act which would constitute the sex crime of Sexual Misconduct. The factual portion of the juvenile delinquency alleged that on Sunday, October 3, 2010 at 12:15 A.M. inside of the residence of respondent’s family in Bellerose, New York, the then 15-year-old respondent forced the victim, his then 14-year-old child neighbor, to perform oral sex upon him.

A Queens Sex Crime Lawyer said that, following preliminary proceedings upon the petition, on November 30, 2010 respondent entered an admission to having committed an act which would have constituted the crime of Sexual Misconduct in full satisfaction of the petition. Following a dispositional hearing, respondent was adjudicated to be a juvenile delinquent, and he was granted a Conditional Discharge for a period of twelve months, conditioned upon his participation in a counseling program to which he would be referred by the Department of Probation, his regular attendance at school, the commission of no further criminal or delinquent acts, and his compliance with the lawful commands of his parents.

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Respondent is the mother of the three subject children. Prior to the commencement of this proceeding, all three children resided in Brooklyn with respondent and her husband. The eldest son was born in the Dominican Republic. Respondent moved to the United States when he was about one year old. The son remained in the Dominican Republic where he lived with a paternal aunt and his paternal grandmother. His mother visited once each year and he spoke to her on the telephone on weekends. When he was 12 years old, his paternal aunt got married and moved to Florida. Thereafter, he moved to the United States. After his arrival, he lived with members of his extended family. In early 2007, he moved to New York to live with his mother, her husband and his two half-siblings.

A Queens County Criminal attorney said that since the petition was filed, the son has been placed with Mercy First. His father resides in the Dominican Republic. Since approximately one month after the filing of the petition, his other two siblings have been temporarily released to their non-respondent father, who lives with his wife in New Jersey.

The Child Services and the Attorney for the children seek a finding of sexual abuse against respondent mother based on sex misconduct, rape in the second degree, rape in the third degree and sexual abuse in the third degree. They assert that the evidence establishes that she had sexual intercourse with her 14-year-old son willingly and voluntarily. They reject her claim that she was raped. They assert that there is no evidence of forcible compulsion since there is no indication that the son used physical force or a threat to compel his mother to submit to sexual intercourse. They also assert that there is no evidence that son’s actions placed respondent in fear that she or someone else would suffer any harm — let alone immediate kidnapping, serious physical injury or death. They contend that her testimony in this regard is inconsistent and wholly inadequate. They contend that respondent acquiesced in Wesley’s conduct and that she never expressed a lack of consent that would have been understandable to a reasonable person. The Child Services and the Attorney for the son urge the Court to infer sexual gratification from the nature of the acts themselves.

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In a juvenile delinquency proceeding, the appeal is from an order of disposition of the County Family Court which adjudged her to be a juvenile delinquent and placed her in the custody of the New York State Office of Children and Family Services for a period of 12 months with credit for time spent in detention.

The Criminal Court found that the appellant, who, at the club where she worked as a dancer, allegedly agreed to perform oral sex on an undercover police officer, committed acts which, if committed by an adult, would have constituted the crime of prostitution.

On appeal, the appellant contends that the evidence was legally insufficient to support the fact-finding and that the fact-finding is against the weight of the evidence. The evidence supporting a fact-finding in a juvenile delinquency proceeding is legally sufficient if, viewing that evidence in the light most favorable to the presentment agency, any rational trier of fact could have found the appellant’s commission of all the elements of the charged crimes beyond a reasonable doubt. Here, the evidence was legally sufficient to establish the elements of prostitution.

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