New York Criminal Lawyer Blog
Domestic violence is a popular topic these days. Better and stronger domestic violence laws have gone in to effect. The truth about domestic violence is that it is cyclical. It follows a regular cycle that begins with a honeymoon phase where everything is wonderful. The abuser is loving and attentive. Then the abuser begins to pick at the other party. They begin verbally abusing them. From there the cycle heats up until violence breaks out. After the violent episode is over, the abuser tends to go back to the honeymoon cycle again. They promise that they will never abuse their spouse again. However, they do, the cycle continues to repeat itself. Each time the cycle completes, it becomes shorter. The honeymoon phase doesn’t last as long and the abuse phase lasts longer. That is the normal progression. Experience also tells us that the most dangerous time for the victim is shortly after they decide to leave. As soon as they separate, the victim should begin to take steps to protect themselves and any minor children. Unfortunately, many victims do not know what danger they are in.
According to a New York Criminal Lawyer on early April of 1998, a wife and husband filed separation papers in Spafford, Onondaga County, New York. Apparently, the wife did not recognize the danger that she was in during this separation stage. The couple continued to reside in the same house following the signing of the separation agreement. On April 21, only a couple of weeks after they separated, they had a heated argument. It was early in the morning just before dawn when the argument became physical. The later investigation revealed that the husband beat the wife about the head with an aluminum baseball bat in front of her two small children. Evidence revealed that during the beating, the wife told her children to call the police because their father was trying to kill her.
After the wife collapsed with a visible indent in her temple, he called his parents and not an ambulance or medical help. When his parents arrived they brought the husband’s brother and a family friend who was a doctor. The police were finally notified and when they arrived, they found the wife lying on the kitchen floor writhing around in her own blood and moaning unintelligibly. The husband had some scratches and minor cuts. A Nassau County Criminal Lawyer they were taken to different hospitals for treatment.
The husband later admitted to police that he had cut himself and come up with a story about the wife being the primary aggressor by coming at him with a knife. He stated that he had cut himself with a nail while he waited for the police to arrive. He also admitted to striking his wife with the bat while she was unarmed. He stated that after everything was over, he had taped a section of garden hose to the tailpipe of his car and decided to gas himself. He told officers that he changed his mind when he saw the rosary hanging in the car.
The husband was indicted in June of 1998 for the assault. The children went to live with their maternal grandparents and aunt and orders of protection were obtained to keep the husband away from the children and the hospital where the wife was trying to recover. The hospital noted that the wife had been struck at least four times in the skull with the aluminum bat. She had surgery to remove a blood clot from her brain. Over the next six months, she was confined to the hospital. She battled life-threatening infections, her brain swelled several times, and she was in a coma for a while. Finally, in October of 1998, she was showing signs of recovery. She was able to speak the names of her children. Her speech was very limited but she was able to say simple words again.
Her mother notified the court that her daughter was regaining her speech. Shortly after that, a nursing assistant noticed a strange man entering the wife’s hospital room. She followed him in and asked him if she could help him. He appeared to be trying to pass himself off as a hospital janitor, but the uniform was not correct. He told her that he was just visiting the wife and left. One week later on October 27, 1998, several members of the hospital staff saw a mysterious man. He was walking around in the hospital. He appeared to be wearing a wig, glasses, a false nametag, and carrying a mop. The hospital was closed to visitors by then. Just after 10:00 P.M., a nurse noticed a strange, strong odor in the wife’s hospital room. She realized that the wife was having difficulty breathing and had an odd waxy-looking substance on her chest. When she touched the wife’s gown, it burned her skin. Hospital staff tried fruitlessly to revive her. She died the following morning. An autopsy revealed that she had been poisoned with potassium cyanide delivered through her mouth or feeding tube. It did not take long to identify the husband as the man who had been in the hospital disguised as the janitor. He was promptly arrested.
A search warrant was executed at the husband’s residence. It produced recovered data from the hard drive of the husband’s computer showing Internet searches on the words “cyanide” and “ordering potassium cyanide.” They also discovered several forged letters composed on the computer that were falsely suggestive that they had originated from an East Syracuse company called General Super Plating. They were sent to a company called Bryant Laboratories placing orders for potassium cyanide. They also recovered a half-burned wig and a bottle of potassium cyanide. The bottle was concealed in a cinder block in the corner of the shed near the rear of the property. Police also located eyewitnesses who saw the husband in July of 1998 intercepting a delivery of cyanide in the area of the General Super Plating business.
On November 19, 1998, the assault charges were still pending. The grand jury indicted the husband for two counts of first degree murder and other related offences. One count was actually murder in the first degree for intentionally murdering the wife to prevent her from testifying at the trial of the assault case. The second count of murder was in reference to him intentionally murdering his wife in the course of and in the act of committing a burglary. He was also indicted for burglary, aggravated criminal contempt and criminal possession of a weapon in the fourth degree.
On December 30, 1998, the District Attorney filed notice of intention to seek the death penalty in this case. He also requested that the court allow him to consolidate the murder and assault indictments. The motion was granted in January of 1999. Because this case was a death penalty case, the jury trial was conducted in two phases. The first phase was to determine guilt. The second was to determine the penalty. The jury returned unanimous verdicts of guilt for both first degree murder counts. The husband was issued the penalty of death. He appealed this verdict.
The husband appealed his conviction based on 38 points. Only three of those points were relevant to the decision that was made by the Supreme Court. Those three issues were considered primary issues to the sentence. The first was a discrepancy in the jury selection. The second was that the weight of the evidence supporting first degree witness elimination murder was legally insufficient to support his conviction. He made the same argument about the first degree murder chase based on the burglary. The reasons that were brought before the court to discuss were straight forward.
The first problem arose in jury selection. Two prospective jurors were not included in the jury pool in a manner in which the defense felt harmed their case. One juror was accepted into the pool even after he repeated on numerous occasions during voir dire that he was not sure that he could determine the facts of the case fairly. He cited an incident early in his marriage when he had shoved his wife in anger and that it still haunted him years later. He was also quite adamant about supporting the death penalty. The second juror was one that was not retained, but was released. She had stated during voir dire that she would do her duty if she had to, but that she had serious reservations about voting for the death penalty.
Secondly, the defense makes the argument that the state failed to support their argument for witness elimination murder. They claim that there were other motives that provoked the husband to intentionally murder his wife while she lay in the hospital that had nothing to do with preventing her from testifying against him. He claimed that he murdered her because he could not stand the fact that his family had been destroyed.
Lastly, the defense maintains that the state failed to sufficiently prove their case for first degree murder based on burglary. In order for this charge to be valid, the burglary would have to be a separate and distinct crime from the murder that was committed. In New York, burglary is an aggravated version of criminal trespass. If the defendant had entered into the building with the intent to rape, rob or commit another felony other than the murder, had committed this offense and then murdered the wife, it would have been a proper charge. Since, the felony act that was being used to support the burglary was the murder, the defense did not think that the state had met their burden of proof.
The Supreme Court agreed with the defense. They overturned the convictions for first degree murder; however, they upheld the one conviction for second degree murder as well as numerous lesser charges. They did not feel that it was necessary to re-try the husband since the matter of guilt had already been sufficiently determined. They did, however, return the case to the lower court in order to determine a new sentence of punishment. The death penalty is not considered an option for second degree murder.
The court also determined that the trial court had erred in their allowances as they dealt with the jury selection in voir dire, however, they also felt that it had no impact on the guilty verdict that was passed down. They felt that it would only have affected the penalty phase of the trial since the only problem that the defense had with the release of the one and the retention of the other was their ability to vote on the death penalty.
Stephen Bilkis & Associates are attorneys who believe that the legal system is in place to protect the rights of all citizens. If a person is charged with a crime, whether it is murder or sex crimes, they need to hire a NY Criminal Attorney to represent them. Our firm has convenient offices located throughout New York and the Metropolitan area. Any time that you find yourself in contact with the law in a family violence case, contact us to have a New York Domestic Violence Attorney assist you.