New York Criminal Lawyer Blog

Published on: June 30, 2012

Supreme Court Discusses Date Rape

by Stephen Bilkis

On February 18, 1992, The Supreme Court for New York County, New York, discussed the application of punitive damages in civil suits against criminally convicted perpetrators would be appropriate in rape cases. A New York Criminal Lawyer said the case in question granted $10,000,000.00 in damages to the victim of a sexual assault in 1988. Her attacker was charged and convicted of rape, sodomy, and sexual abuse. The victim subsequently filed a civil suit to recover damages. The victim was a fashion model who relied on her unblemished physical beauty for her source of income. During the course of the rape, her attacker had slashed her with a knife. The slashing made it impossible for her to continue gainful employment as a model.

The 1991 amendment to the Civil Rights Law § 50-b demands that all victims of sex offenses regardless of their age be protected from having their identities disclosed to the public. The reason that rape victims identities require protection from disclosure is associated with the societal stigma that is placed on victims of sexual assault in general. This is especially true in the case of date rape. Date rape which is sometimes called acquaintance rape, is the most common form of rape in this country. Most cases of date rape go unreported. Prior to 1974, a rape victim had to have corroboration in the form of an eye witness or physical evidence to substantiate her claim of rape. That created an atmosphere of danger for any woman who was alone with a man. The court recognizes that date rape is a crime so old that it is recorded in the bible. For many years, if a woman willingly went to a man’s apartment or bedroom, the general opinion was that she knew that she would be expected to have sex with that man. If she then told him that she did not want to have sex with him and he forced her to have sex, society had the view that she had asked for it. She was considered to have known what she was getting into when she agreed to be alone with a man in an area that “good” girls did not go.

In 1988, mainly as a result of a book about it, date rape was put into the spot light. Many women reported during a comprehensive study to have suffered from forced sexual intercourse by dates. In fact, a staggering 20% of college students reported in 1985 that a date had forced them to have sexual intercourse against their will at least once. Many women did not even call forced sex on a date, rape. The FBI estimated that in 1988 60 to 80% of the women who were raped, were raped while on a date with their attacker. It was not until 1991, when the Violence Against Women Act was proposed that these issues were brought to the forefront of criticism in American public view. These proposed laws would make federal penalties available for rape prosecutions and require mandatory restitution to the victims.

Published on: June 29, 2012

Defendant Claims Bringing Up Prior Acts Prejudiced Jury

by Stephen Bilkis

Drug Possession crimes are a problem in every city in the United States, but courts do not usually expect to find them on their own back doorsteps. In the case of the Supreme Court of Bronx County in 1972, they did not expect to find the drug problem on the very steps of the courthouse. However, that is exactly what transpired in September of 1972. An undercover narcotics team was working a case involving a drug ring that was operating out of Franz Segal Park just around the corner from the Bronx County Supreme Court building. The narcotics undercover team made three different purchases of narcotics from the dealer on September 8, 11, and 12.

The undercover officer would meet with the dealer in Franz Park, make the purchase, and then return to the team with the cocaine. The narcotic would be tested to ensure that it was cocaine. The undercover officer was wearing a wire so that the transaction was tape recorded. However, there was no video at the time that was effective in the field. Following the third purchase, the defendant was arrested for trafficking in narcotics. In his trial, he testified that he was not a drug dealer and that he had never sold anyone any drugs. The undercover team had to testify that they had not witnessed the transactions and had only seen the undercover officer leave with the money and come back with the cocaine (cocaine possession).

Interestingly, at trial the prosecutor questioned the officer extensively about the purchases that he made from the defendant in Franz Park. He went in to great detail to show that the time and place of the transaction for which the defendant was charged was identical to the time and place in which he had previously been arrested for dealing drugs. The problem with this line of questioning was that according to the law, prior offenses can only be brought up in trial to show the credibility of the witness. A prosecutor may not use questioning on previous acts to show a propensity to commit the crime that the defendant is on trial. That policy is set forth in People v. Schwartzman, Supra, 24 N.Y.2d p. 247, 299 N.Y.S. 2d p. 822, 247 N.E.2d p. 645. The crimes for which the prosecutor was referring were the two prior drug deals that were under indictment, yet not adjudicated by the time of the trial in question.

Published on: June 29, 2012

Can the Mentally Ill Understand the Consequences of Their Actions?

by Stephen Bilkis

Legality as it involves persons who are mentally ill can become convoluted. Many cases have reached crossroads where the offender is mentally ill. The rights of the victim become confused with the ability of the offender to understand what occurred. In some cases, it is an even more horrendous injustice. At what point is a person mentally incompetent to understand that the actions that they took are wrong. A New York Drug Crime Lawyer said if they are sent for treatment at a treatment facility, does that mean that they should not serve any prison time related to the offense that they committed. If they are not penalized for their actions, what message is the system sending to the victim of the crime?

These questions have plagued the criminal justice system since the beginning of time. The question becomes one of intent. Is the intent of the criminal justice system to punish; or is the intent of the system to rehabilitate? Are prisons, just places to keep the public safe for a time from the behavior of inmates; or are they places to rehabilitate them? A New York Drug Crime Lawyer said some states have adopted laws that allow for a guilty but mentally ill finding in a trial. In cases of guilty, but mentally ill, the offender is sent to a secure mental illness hospital until they are determined to have been cured of their illness; only then do they report to the prison to begin serving their time for the offense that they committed. In that manner, they are fully aware that an insanity defense is not a get out of jail free card. They are required to serve the time for the crime that they committed.

In 1984, many of these issues were brought to the attention of the general public when a man was convicted of raping a woman among several other heinous crimes in New York. He was convicted on January 8, 1981, in front of a jury for his crimes. However, he was determined to be mentally incompetent to understand or take responsibility for his crimes. He was determined to be suffering from a dangerous mental disorder. He was sentenced to an indeterminate sentence in a secure mental illness facility. A Queens Drug Possession Lawyer said the Commissioner of Mental Hygiene was responsible for reviewing the case on a regular basis. In September of 1981, and again on October 27, 1982, the Orange County Court signed first and second retention orders ensuring that the defendant was continued in the care of the secure mental hospital that he had been sent to originally.

Published on: June 29, 2012

Court Discusses Concept of Equal Protection

by Stephen Bilkis

The Facts:

Sometime in 1978, defendant and his wife got married. In October of that year, shortly after the birth of their son, defendant began to beat his wife.

In early 1980, the wife brought a proceeding in the Family Court in Erie County seeking protection from the defendant.

Published on: June 29, 2012

Court Orders New Trial in Rape Case

by Stephen Bilkis

An appeal was filed by three men on a decision charging them for the crimes of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree and assault in the second degree.

A New York Sex Crimes Lawyer said the three men, as the appellants, made an offer of proof concerning the complaints of prior sexual conduct of the woman. The three men offered an affidavit from an 18-year-old college student. The college student stated that the complainant had performed fellatio on him, but that she would not let him touch her breasts. He also stated that various other males had told him of sexual relations had by them with the complainant. In a similar affidavit, another 18-year-old university student stated that he had sexual relations with the complainant on five other occasions and during the course of which the complainant had never permitted him to touch her exceptionally large breasts. The complainant also told the second witness that that she was sexually active. The second witness believed that the complainant was willing to have sex with anyone at any time. Lastly, on the affidavit of the former employer of the complainant, he stated that he too had sexual relations on approximately 12 occasions with the complainant and that she never allowed him to touch her breasts and had told him that she was sexually promiscuous.

After a hearing and a review of the various exhibits submitted by the appellants, the trial court ruled that some of the subdivisions were not applicable and that the evidence offered was not relevant and acceptable. Additionally, a New York Sex Crimes Lawyer said the evidence of the complainant’s prior sexual conduct was therefore disqualified at the trial. The appellants further assert that the penal law permits the trial court to prohibit the admission of relevant evidence in order to protect the privacy of the complaining witness. They contend that this prohibition violates their right to a fair trial.

Published on: June 29, 2012

Court Discusses Corroboration Element of Sex Offenses

by Stephen Bilkis

A man was arrested and charged with the offenses of rape in the first degree, sodomy in the first degree and possession of a dangerous weapon. The offenses were allegedly committed recently after the arrest. In addition, the grand jury failed to indict the man for the rape and sodomy charges, on the ground that there was no corroboration of the complainant’s testimony as to the intercourse, but directed that information be filed on the weapons charge. The information on the possession of a dangerous weapons charge was then filed.

The man however moves to dismiss the information on the ground that the offense of possession of a dangerous weapon requires intent to use unlawfully and the only proof of unlawful intent would be the complainant’s testimony that she was raped. Since there can be no conviction for the allege offense due to lack of corroboration, the man contends that the testimony of the complainant cannot now be used to convict him of the weapons charge.

In order for the court to address itself to the man’s contention, a brief recapitulation of the legislative history of laws pertaining to corroboration is required. However, the court of appeals subsequently overruled the line of cases and held that convictions for the crimes of attempted rape, assault and other offenses related to the offense could not be sustained where the only evidence against the opponent was the uncorroborated testimony that a consummated rape had occurred. Moreover, the reasoning of the court of appeals in the various cases was that the only testimony implicating the man in the non-rape charges was testimony of an actual rape.

Published on: June 29, 2012

Rape Charges Dismissed for Lack of Evidence

by Stephen Bilkis

The man was charged with kidnapping in the second degree, two counts of assault in the second degree, attempted rape in the first degree and attempted sexual abuse in the first degree. The man was also charged with similar counts previously involving another woman but was later dismissed.

Evidently, the only proof of the man’s alleged criminal acts was the testimony of the complainant, who first reported the incident to the police when the police came to interview her in connection with the reported attack on the other woman. The complainant specifically testified that one afternoon, she brought her three children to her neighbor’s apartment because she intended to go to a hospital to fill a prescription. On that event, the man was also there and volunteered to go downstairs to call a taxicab for her. It was about 4:15 P.M. or 4:30 P.M. when the complainant entered the taxicab. A New York Criminal Lawyer said the man then suddenly climbed in behind her and told the driver to pull off and keep driving. The ride lasted more than 10 minutes and maybe about two hours. At the cab, the man told the complainant that she was going to pay for what everyone had done to him. When the complainant responded that she didn’t know what the man was talking about, the man kept repeating that she was paying for what had happened to him and she should shut up. The man then began to hit the complainant about her face with his fists. The man continually assaulted the complainant throughout the ride. At one point, the man struck her in the back of her head with a gun and stated that he would kill the complainant because she was paying for what everybody did to him.

Afterwards, the man also asked the taxicab driver if he wanted to watch him killing the complainant. At another point, the man told the complainant that if she told anyone about what happened in the taxicab he would kill her son. As darkness set in, the ride ended at a vacant parking lot and the complainant could not recall the lot’s exact location but estimated that it was about two miles from her home. At the parking lot, the man pulled the complainant out of the taxicab. A New York Criminal Lawyer said the man again threatened to kill the complainant’s son if she screamed and he invited the taxicab driver to punch the complainant. The taxicab driver punched the complainant in her mouth with his fist. The man continually screamed at the complainant and again struck her in the back of her head with the gun. The man also punched the complainant in her stomach causing her to fall to the ground. As she passed into unconsciousness, the man told the complainant that he was going to rape her. The complainant woke up the next morning and the only clothes left on her was her shirt and socks. She had a lump on her head, her stomach and genitals felt sore, and her legs felt sore, wet and sticky. She found the rest of her clothes strewn about the parking lot.

Published on: June 29, 2012

Court Discusses Issues of Discrimination and Equal Protection

by Stephen Bilkis

The Facts:

Sometime in 1977, defendant-one was indicted for the crime of Rape in the Third Degree, a criminal law violation; that defendant, over twenty-one years of age, engaged in a sexual intercourse with a female less than seventeen years of age.

A New York Criminal Lawyer said that sometime in March of 1978, defendant-two was under an eight count indictment; two counts of the indictment charged crimes of Rape in the First Degree; that defendant engaged in sexual intercourse with two females who were less than eleven years old.

Published on: June 28, 2012

Defendant Brings an Appeal for Incest Charges

by Stephen Bilkis

The accused was indicted for rape, assault and incest. The complainant is his thirty-six year old half-sister. The court dismissed the first count of the indictment charging rape by force, and the jury found the accused guilty of the remaining count of rape under the Penal Law, assault and incest.

A New York DWI Lawyer said he accused moved for an order arresting the judgment of conviction and setting aside the verdict of guilt as to the rape and incest on the ground that it was contrary to law and against the weight of the evidence. No effort is made to disturb the verdict of guilty of the simple assault.

The accused contends that the jury, by finding him guilty of simple assault only, negated any intent on his part to commit a rape. He also contends that the crime of incest could not arise from the gluttonous act, upon which the jury based its finding, the essence of such crime being an act of intercourse arising from the mutual consent of relatives within the prescribed line of consanguinity set forth in the Penal Law.

Published on: June 28, 2012

Is Rape During a Hospital Stay Medical Malpractice?

by Stephen Bilkis

The Facts:

At the time of the rape, the victim (or claimant) was 20 years of age and had a history of psychiatric problems, including several hospitalizations. She was hospitalized at South Beach in 1990 after trying to jump from a window. Other probable suicide attempts include setting the bathroom and her bathrobe on fire, drowning in the bathtub, and choking herself with a cloth while being transported in an ambulance. In 1990, she apparently attacked her father over whether she could leave the house late one night.

A New York Drug Crime Lawyer said in August of 1992, the claimant was admitted to South Beach after she had spoken about suicide, been unable to sleep, had bouts of crying and told of hearing voices. At that time she had been attending a Mental Health Center. On 9 September 1992, after nearly a three-week hospitalization, the claimant was discharged; the discharge note described her stay as “uneventful”.