Sex Crimes

Published on: January 24, 2013

Court Rules Upon Third Petit Theft Conviction, Offense is a Felony

by Stephen Bilkis

In a court proceeding, a man filed an appeal for his conviction and sentence for felony petit theft. He asserts that the subsection of the statue convicting him does not permit consideration of convictions for petit larceny.

A New York Criminal Lawyer said that based on records, petit theft is normally a misdemeanor and the law specifically provides that upon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the third degree. Therefore, in order to be sentenced under the felony provisions, the offender must have been convicted twice previously with a petit theft (petit larceny) case. Yet, the trial court indicated that they considered two previous convictions of the man, one for petit larceny and one for attempted petit larceny, as the basis for the man’s enhanced sentence. Since the statute does not permit consideration of the attempted petit larceny conviction, the trial court erred in sentencing the man.

Consequently, the court finds no distinction between the two statutes for the purpose of sentencing. As a result, the court decided to reverse the sentence and remand the cause for resentencing.

Published on: January 24, 2013

In Consecutive Sentences it Depends on Whether the Acts Were Committed with the Requisite Intent

by Stephen Bilkis

An appeal was filed by the defendant who was convicted with the crimes of murder and criminal possession of a weapon. He alleged that the court erred in its decision to impose consecutive sentences for the indictments he committed claiming that the accused acted with a singular intent.

The Supreme Court, holding the recent decisions of the Court of Appeals, the determining factor to review the legality of consecutive sentences is “whether separate acts have been committed with the requisite criminal intent.” Consequently, the Court ruled that there was no overlap of the statutory elements of the crimes committed by the appellant, thus, affirming the lawful imposition of consecutive sentences.

A New York Criminal Lawyer said there were two resident gangs at Manhattan who had several altercations among its gang members. One group was composed of the defendant, his sibling and a friend while the other group was a street gang, whose two members were the victims in a shooting incident that caused filing of the felony case against the appellant. Several hours prior to the shooting confrontation, the two groups had encounters and thereafter physical altercations commenced among its gang members. One of the witnesses testified that she saw a gun being carried by the accused at that time of the altercation. After the lapse of a few hours, the defendant moved toward the victim, who was accompanied by other gang members. The group of the victim walked away from the offender to avoid any untoward incident. However, the defendant then took his gun from his shorts and chased down the victim and shot the two victims who died of gunshot wounds.

Published on: January 24, 2013

Court Decides of Act of Murder was an Act of Terrorism

by Stephen Bilkis

The appeal was filed by the defendant for his conviction of the penal offenses of manslaughter that is considered a crime of terrorism, attempted murder, gun crime and conspiracy.

A law was enacted by the Congress that penalized acts of terrorism due to the terrorist attacks that happened in 2001 enumerating specific crimes considered as acts of terrorism.

On August 18, 2002, members of two rival gangs had a fight that occurred after a party was held in Bronx. A New York Criminal Lawyer said that during the fighting incident, several gun shots were fired that caused the death of a 10-year-old girl and the paralysis of a young guy. The accused was one of the members of a Mexican-American gang and was held responsible for the shootings. The prosecution claimed that said act of defendant was considered a felony of terrorism on the ground that he intended to cause intimidation or coercion towards civilian population, namely, gang members of Mexican-American descents residing in the area of Bronx.

Published on: January 23, 2013

Court Discusses Depraved Indifference to Murder Charge

by Stephen Bilkis

On May 11, 2004, a firefighter conducting a routine building inspection discovered the body of 42-year-old woman on the roof of a building in the Bronx. A New York Criminal Lawyer said the black plastic bag covered the woman’s head and was knotted tightly around her neck. When the body was found, she was barefooted, her sweatshirt pulled up over one of her breasts and her jeans unzipped and pulled partially down. One of two beaded necklaces around her neck was broken and beads were missing. After the plastic bag was peeled from her head, a wound above her right eyebrow and a bruise to her right cheek were noted.

The building at 187th Street is privately owned and used by the City of New York as a temporary housing facility. The defendant resided in the building until May 6, 2004. The hallway of each floor of the building is monitored by two video cameras. Videos in evidence depict the defendant approaching the dead woman and entering his apartment with her on May 5 at 9:08 p.m., stepping back into the hallway and looking at the video camera on May 6 at 2:30 a.m., and carrying the woman’s body to the roof on the same day at 10:40 a.m. Shortly thereafter, the defendant is seen leaving his apartment carrying a piece of white cloth and then reentering the apartment. Five minutes later, the defendant is seen leaving the building carrying his belongings in a black plastic bag. Beads matching those on the woman’s broken necklace were found scattered throughout the defendant’s apartment by a Detective on May 13. Bloodstains were also found on the bedroom wall and door. On May 18, the Detective took the defendant into custody and escorted him to the precinct. While in custody, the defendant made a series of statements of which five were handwritten and one videotaped.

According to the defendant’s statements, the woman accompanied him to his apartment after agreeing to have sex with him in exchange for crack cocaine and money. The defendant stated that during the evening the woman attacked him and he hit her in the head to protect himself. Thereafter the woman became quiet and the defendant fell asleep. The defendant stated that upon waking up the following morning, he heard the woman’s heartbeat, but he later denied hearing it. He added that the woman was bleeding and he placed the plastic bag on her head to stop the blood from spreading and because he couldn’t stand to look at her. Thereafter, he dumped the woman on the roof, gathered his possessions and vacated the building. A grand jury indicted him for the criminal acts of depraved indifference murder and manslaughter in the first degree.

Published on: January 23, 2013

Husband Accused of Lying Under Oath

by Stephen Bilkis

The complainant husband was granted an uncontested divorce from defendant-wife on the ground of constructive abandonment. This cause of action, often referred to as sexual abandonment, is perhaps the ground most widely used in proceedings where both sides agree to the divorce. A New York Criminal Lawyer said that as part of pleading his claim of sexual abandonment, the husband had to swear to the fact that he and his wife did not have sexual relations for over a year. The wife is attempting to use that statement to prevent her husband from seeking to establish that a child born during the course of the marriage, but conceived well after the date on which the parties allegedly stopped having sex, is actually his son.

The husband contends that irrespective of what he stated in the divorce pleadings, the child in question is in fact his child. He moves for an order directing that genetic marker testing be done so as to conclusively determine paternity. Upon such determination, he further seeks a declaration of paternity and the amendment of the divorce judgment to reflect that his son is the child of the marriage.

The wife opposes her husband’s motion in all regards. She points out that her husband, in his verified complaint for divorce, alleged that from August 1, 2006, onward she refused to have sexual relations with him. Thus, based on his own sworn statements, the wife contends that the child, who was not born until March 19, 2008, cannot possibly be his. A New York Criminal Lawyer said the wife further submits that if her husband is taking the position that the child is his child, this means that the sworn statements in his verified complaint concerning the lack of sexual relations must be untrue. With this regard, the wife cross moved for and order finding that her husband has committed perjury in the second degree.

Published on: January 23, 2013

Child Put in Foster Care After Severe Abuse

by Stephen Bilkis

Appellants are parents of three children and their parental custody was removed by the court, thus, the appeal was filed before the court for resolution.

In 1997, the father raped her 8-year old daughter during the time that his wife and two sons were asleep at the living room of their apartment. A New York Sex Crimes Lawyer said the child victim went to her mother holding herself tightly and bleeding from her vagina. The mother let her daughter take a shower, placed a sanitary pad to her daughter’s bleeding vagina and made her sleep in bed. The mother did not seek the medical assistance for her daughter as suggested by her husband. After a while, their daughter, being a rape victim, started complaining about stomach cramps and she continue to bleed and vomited.

Upon seeking medical treatment, the parents told a different story about what happened to their daughter and concealed the real story of what happened to their child. A New York Sex Crimes Lawyer said their daughter continued to bleed profusely. The mother even knew of a prior sodomy of her husband toward her daughter and also her husband’s mother accused him of a sex crime of his younger sister. Her daughter underwent operation and was confined in the hospital for ten days.

Published on: January 22, 2013

Plaintiff Requests Anonymity in Sex Crimes Case

by Stephen Bilkis

Plaintiff alleges that on October 10, 2007 at the nightclub “Tenjune,” in the Meatpacking District of New York City, defendant, an NBA basketball player “grabbed the plaintiff’s buttocks and `crotch’ area on multiple occasions without her permission and consent.” A New York Criminal Lawyer said that, plaintiff, now moves by order to show cause to proceed anonymously to avoid the possibility of unwanted publicity and the exacerbation of the emotional distress suffered from the alleged incident.

According to the complaint, plaintiff and defendant were within the premises known as Tenjune, located on Little West 12th Street, New York, New York. Plaintiff alleges that defendant “willfully and intentionally verbally threatened her after grabbing her buttocks and `crotch’ area.” It is claimed that the “battery and assault which was committed upon the plaintiff, was not in any way brought on by nor provoked by the plaintiff.” A Bronx Sex Crime Lawyer said that, plaintiff alleges that defendant’s actions amounted to a series of harmful or offensive contacts to the plaintiff’s person, all of which were done intentionally by the defendant, without her consent. Plaintiff also alleges that defendant’s actions were reckless, extreme and outrageous, and created a reasonable apprehension in plaintiff of immediate harmful or offensive contact. As a proximate result of defendant’s actions, plaintiff has allegedly sustained “physical injury, serious psychological and emotional distress, mental anguish, embarrassment and humiliation.” Plaintiff also has allegedly incurred medical expenses and other economic damages, continues to be “sick, sore, lame and disabled” and is unable to pursue her usual activities and employment.

In support of her application to proceed anonymously, plaintiff argues that Civil Rights Law § 50-b was enacted to provide a limited right of privacy to a specific class of individuals, namely, victims of alleged sex crimes. Plaintiff further argues that, based upon the allegations set out in the complaint, it is clear that she is an intended beneficiary of this statute. Plaintiff contends that this is potentially going to be a high-profile case due to defendant’s status as a professional athlete. Therefore, plaintiff should be allowed to proceed anonymously.

Published on: January 22, 2013

Defendant Charged with Grand Larceny and Petit Larceny Challenges Sufficiency of Evidence

by Stephen Bilkis

A man, who was found guilty of grand larceny and petit larceny, filed an appeal and urges the insufficiency of the evidence to support his convictions. But, the court finds the evidence sufficient to support the charges. The court therefore affirmed the conviction and sentence.

Based on records, a New York Criminal Lawyer said the court affirmed the conviction of breaking and entering, but it appears that the state failed to sufficiently prove intent to commit a felony and the record will only support a conviction of breaking and entering with intent to commit a misdemeanor. In addition, a misdemeanor would be reviewable in the circuit court. But, the trial judge had the power to make such settlement as to the lesser included offense.

The man points out the charges of petit larceny. However, the body of the information clearly charged a felony by alleging the felonious taking of personal property of a value in excess of $100.00 and the court announced that it found the man is guilty as charged. The court also found no error in the finding of guilt. But as it appears that the sentence was joined with that of the breaking and entering with intent to commit a felony. A New York Criminal Lawyer said the court likewise vacate the sentence and return the matter to the trial court for an appropriate sentence in accordance with the law of the state as made and provided for petit larceny. As a result, the matter is returned to the trial court for further proceedings.

Published on: January 21, 2013

Defendant Contends Constructive Possession Could Not be Established in Drug Case

by Stephen Bilkis

An undercover officer observed the accused hand a third party several glassines of heroin in exchange for money. When the officer solicited two glassines, the accused insisted that the alleged buyer first snort some heroin and, upon the officer refusing, the accused walked away without consummating that sale. When the backup team approached the accused, he ran, discarding 20 glassines of heroin during his flight. A New York Criminal Lawyer said this gave rise to charging the accused with criminal possession of a controlled substance in the third degree. When the accused was apprehended, he had an additional three glassines of heroin on his person and two $20 bills in his pocket. This gave rise to charging the accused with criminal sale of a controlled substance in the third degree. Eight glassines of heroin were recovered from the accused man’s underwear at the precinct. The accused testified that he was an addict who snorted several bags of heroin daily, that he carried the drugs only for his own use, that he had purchased, rather than sold, the heroin, and that he had resisted the advances of a stranger who turned out to be the undercover officer. The evidence sufficiently proves the charges. However, procedural concerns require a reversal of the criminal possession conviction.

A New York Criminal Lawyer said after summations and submissions of the final charges to the jury, the counsel requested submission of criminal possession of a controlled substance in the seventh degree as a lesser included drug offense of the third-degree possessory offense. The court refused, not on any statutory basis, but because the timing of the request contravened the court’s policy. The record supports the defense counsel’s representation that, in fact, he had previously indicated to the court’s Law Secretary that the request might be made, but that counsel would have to hear the accused man’s testimony first. The complainant concedes that if the request had been timely made, the accused would have been entitled to the charge. Although it is manifestly preferable that both counsel know all the charges to be submitted to the jury before summations, the statute appears to authorize such request to be made by counsel at any time prior to the submission of the case to the jury, and the Court of Appeals has characterized this as a general rule, which also reflects the practice in the Second Department. In the present case, there is no indication that the timing of the request manifested an abusive practice, or that granting it would have prejudiced the complainant. Under the circumstances of the case, the charge should have been given to the jury. In reversing and remanding this charge for trial, the remaining charge of which the accused was convicted remains unaffected, insofar as it depended on a different item of evidence.

In one of the heroin related cases, as a result of his alleged sale of heroin to a confidential informant in two controlled buys and his heroin possession at the time of his arrest for those sales while on his way to a third such transaction, the accused was charged by indictment with, among other things, five counts of criminal sale of a controlled substance in the third degree. Following a hearing, a New York Drug Possession Lawyer said the County Court denied the accused man’s pretrial motion to suppress all evidence resulting from his warrantless arrest, finding that the police had probable cause to arrest him. The accused was then convicted as charged following a jury trial. The County Court sentenced him as a second felony offender to five concurrent prison terms of 11 to 22 years and he now appeals.

Published on: January 21, 2013

Defendant Contends Court Erred in Imposing Consecutive Sentences

by Stephen Bilkis

An appeal was filed by the defendant who was convicted with the crimes of murder and criminal possession of a weapon. He alleged that the court erred in its decision to impose consecutive sentences for the indictments he committed claiming that the accused acted with a singular intent.

The Supreme Court, holding the recent decisions of the Court of Appeals, the determining factor to review the legality of consecutive sentences is “whether separate acts have been committed with the requisite criminal intent.” Consequently, the Court ruled that there was no overlap of the statutory elements of the crimes committed by the appellant, thus, affirming the lawful imposition of consecutive sentences.

A New York Criminal Lawyer said there were two resident gangs at Manhattan who had several altercations among its gang members. One group was composed of the defendant, his sibling and a friend while the other group was a street gang, whose two members were the victims in a shooting incident that caused filing of the felony case against the appellant. Several hours prior to the shooting confrontation, the two groups had encounters and thereafter physical altercations commenced among its gang members. One of the witnesses testified that she saw a gun being carried by the accused at that time of the altercation. After the lapse of a few hours, the defendant moved toward the victim, who was accompanied by other gang members. The group of the victim walked away from the offender to avoid any untoward incident. However, the defendant then took his gun from his shorts and chased down the victim and shot the two victims who died of gunshot wounds.