New York Criminal Lawyer Blog
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.
A New York Sex Crimes Lawyer said the Penal Law, Predatory Sexual Assault, as charged in the instant indictment, reads that a person is guilty of predatory sexual assault when he or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in the article, and when he or she has engaged in conduct constituting the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in the article, against one or more additional persons.
The man’s first contention is that the Jury failed to state a crime or offense in the remaining counts of the indictment. Since the four counts in question are uniformly worded and the man’s arguments are exactly the same for each, an analysis of one count will be sufficient to address them all.
The Grand Jury of the County of Kings accuses the man of the crime of Predatory Sexual Assault because he committed the crime of Rape in the First Degree and engaged in conduct constituting Criminal Sexual Act in the First Degree, namely: contact between the penis and the mouth of the man.
Courts have long recognized that the indictment as a document has traditionally served several purposes. A New York Drug Possession Lawyer said an indictment is considered the necessary method of providing the man with fair notice of the accusations made against him in order to allow him to prepare a defense.
Second, the indictment provides some means of ensuring that the crime for which the man is brought to trial is the one for which he was indicted by the Grand Jury and not some alternative seized upon by the prosecution based upon subsequently discovered evidence Third, the indictment specifies the crime or crimes for which the man has been tried so as to avoid any issue of double jeopardy.
As the man acknowledges and the court’s research confirms the Penal Law is a relatively new statute for which there exists little or no legislative history or commentary. Additionally, the court has found no precedent in the case law that specifically addresses the issue of the application of the Penal Law raised by the man.
In arguing that Penal Law applies only to convicted juvenile sexual offenders and defendants with out-of-state violent sexual felony convictions, the man not only contradicts his own conclusion that the section does not require a conviction, but further strains the interpretation of the section by insisting that it is inapplicable to two present, separate allegations.
According to the man, Penal Law is designed to prevent recidivism or predator-like conduct and therefore, cannot be charged when a defendant is accused of offenses against separate complainants in one accusatory instrument. The man’s argument appears to be that Predatory Sexual Assault cannot be established by evidence of predatory sexual behavior. The court is not persuaded by the argument.
The Court finds that the remaining counts of the indictment are supported by legally sufficient evidence and do not violate the man’s due process rights. Accordingly, the man’s motion to dismiss the Counts Twelve through Fifteen is denied.
The court finds, then, that the evidence before the Grand Jury was legally sufficient to establish the remaining offenses charged and that the man committed said offenses. Additionally, the court finds that the instructions on the law given to the Grand Jury were adequate and legally sufficient. Further, no procedural flaws or errors support dismissal or reduction of any remaining count or of the indictment.
When we are made to do things against our will, it is a form of crime one way or another. Sex should be among two persons who both consent to the act, if you were made to engage in the said act unwillingly, call a Kings County Sex Crime Attorney and a Kings County Criminal Lawyer from Stephen Bilkis and Associates.