The Facts:
On 21 May 2008, as amended on 28 May 2008, defendant was convicted by the Supreme Court, Bronx County of rape in the third degree, a criminal law violation. He was sentenced as a second felony offender to a term of 2 to 4 years.
The Ruling:
On August 24, 1977, a woman reported to the police that she had been raped that morning. One month after the reported rape, the District Attorney applied to the court to compel the accused to participate in a line up in connection with the investigation of the August 1977 rape. The application was denied by the court.
A New York Criminal Lawyer said year later, on August 24, 1978, another woman from the same town reported a rape in the early morning. She said that a man who drove a Cadillac Eldorado had raped her. She memorized the license plate. The police checked the license plate and it matched the license plate of a Cadillac Eldorado which was reported stolen.
Three hours after the report of the rape, the police found the Cadillac Eldorado parked by the roadside and the accused sleeping inside the car. He was arrested and taken to the police station. Later that morning, he was arraigned for criminal possession of stolen property. At his arraignment, he was told that he had the right to be represented by a lawyer of his own choosing and if he cannot afford one, a lawyer can be provided for him but the accused refused to be represented by a lawyer.
The Facts:
On 10 October 1965, defendant broke and entered a room, housing at that time the complainant alone, armed with a knife, forcibly committed upon her person (according to the complainant’s testimony) an act of consummated, though uncorroborated, rape.
Thereafter, defendant is charged with the crimes of Burglary Third Degree (Breaking and Entering a Building with Intent to Commit a Crime therein) and Assault First Degree (Assault with Intent to Commit a Felony upon the person of the one Assaulted with a Deadly Weapon) in two separate counts.
The accused, a bachelor of approximately thirty-seven years of age met an incoming plane at LaGuardia Airport, from which disembarked a twenty-year-old petite, attractive second-year student woman, an unworldly girl, evidently unacquainted with New York City and the sophisticated city ways, a girl who proved to be, as indicated by the testimony, incredibly gullible, trusting and naive.
A New York Sex Crimes Lawyer said the testimony indicates that the accused struck up a conversation with her, posing as a psychologist doing a magazine article and using a name that was not his, inducing the woman to answer questions for an interview.
The evidence further shows that the accused invited the complainant woman to accompany him in an automobile to the Grand Central Station in Manhattan. They were accompanied in the automobile by other persons, some of whom were introduced by the accused as colleagues on a professional basis. There were numerous detours before they found their way to the Grand Central Station. First, they were taken to an apartment on the east side where some of the parties were left behind.
The fifteen year old alleged kid victim related that on July 13, the accused approached him in back of a store and started to talk to him about different things, such as drugs and pinball machines. The accused reached into his pocket for some old coins. He accused the kid of having stolen the coins. He made the kid believe that he did a telephone call to a man pretending audibly that the man on the telephone owns a store and was missing the coins which the kid possessed. The accused borrowed money from the witness; bought a bottle of wine and walked with the kid to the river. A New York DWI Lawyer said he accused man forced the complainant kid to drink some of the wine, after which he removed the kid’s clothes and reciprocal oral sodomy took place, as well as other forms of deviate sexual intercourse. The kid participated under fear of bodily harm, remembering stories of kids being killed down by the river. Following the experience, they walked away from the river and the kid succeeded in running away from the accused man. He arrived at a gas station and wanted to call his home or the police, but was unsuccessful because of lack of money. He then walked home and reported his experience to his Grandmother and Father and then to the police.
The gas station owner testified that the alleged kid victim came running to his gas station and asked to borrow a dime to call the police. The kid told the witness of having been attacked down by the river. The kid appeared to be shook up, nervous and he wasn’t crying. He pointed out a man in a white shirt and dark pants who he said had just attacked him, but the witness stated that he would not be able to identify him.
A gas station employee was the last witness to testify. A New York DWI Lawyer said he was employed by the store in which the alleged victim and the accused man appeared and the telephone call was made concerning the old coins. He confirmed what the kid, the alleged victim, had previously told the Grand Jury with respect to the accused man’s audible conversation with a man concerning missing coins. After the phone call, they walked out of an entrance way that leads into an alley and the boy seemed to be arguing he didn’t do it, and he kept his hand on the shoulder and pushed him out the back entrance.
In 2007, a man was convicted of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. The case stemmed from an incident that was witnessed by an on duty uniformed police officer in Chemung County, New York. A New York Criminal Lawyer said the police officer was on regular patrol when he stated that he observed a van pull alongside a jeep that was about twenty to 25 vehicle paces in front of him. He testified at trial that he saw a light-skinned male who was wearing a white sweatshirt that had a design on the sleeves. He was wearing a light colored hat. The man leaned out of the passenger side window in the front of the minivan. He fired a pistol at the jeep and sped off when the officer began to chase him. During the pursuit, the passenger in the front of the van jumped out and ran. The officer followed him on foot and apprehended him hiding in bushes a short distance away. He was still wearing the light colored sweatshirt with stripes on the shoulders but he only had on one boot. The missing boot and the hat were located nearby as was a Sig Sauer P-239 9 millimeter pistol. A magazine that fit the weapon was located in a parking lot near the area where the defendant had fled the van. Ballistic testing on the pistol verified that the weapon was operable and that the bullet and casing evidence from the scene were consistent with the test bullets that were fired from that pistol.
Upon apprehension, the defendant stated that he was not the shooter and that the shooter was actually another man who was in the van. A New York Sex Crimes Lawyer said the trial court did not think that the explanation provided by the defendant was reasonable and he was convicted and sentenced to 15 years of imprisonment. One of the contentions that the defendant made when he filed an appeal was that one of the laws that he was convicted of had been repealed before he was sentenced. The law was repealed after he was indicted and before he was sentenced. The court of appeals agreed that this charge on his indictment should have been dismissed prior to the sentencing phase because the law had been changed.
While it may not seem common, it is more common than one would think. Laws are changed and revised every year, during this time of fluctuation in the laws, people are still being stopped and arrested. Long Island Criminal Lawyer said there is usually a time delay in the time between the change of a law, and the enactment of the changes. An officer and sometimes even officers of the court are not notified immediately upon the change of a law. It can be several months from the time that a law is changed to the time that the information on the change in the law reaches the courts and police officers. During that time, people are still being charged and convicted of the offenses. Defense attorneys are necessary to ensure that the defendant does not have to serve time on a charge that was repealed prior to his arrest. It is unreasonable to have a defendant serve time for a conviction on a law that does not exist at the time that his sentence if read. In this case, the defense attorney caught the problem and filed the appeal that enabled the courts to correct the injustice before the defendant spent years in prison for a crime that was not valid at the time of his sentencing.
A man filed a motion for him to file a late notice of explanation. The man’s counsel has established good reason for late filing of the notice which is attached to the moving papers. As explained on the counsel’s letter, a New York Criminal Lawyer said the alleged criminal acts occurred more than two years ago and making the notice of explanation was difficult. The state of New York noted on the record that they do not oppose the request and the notice will be deemed timely and is directed to be filed.
The second and third branches of the man’s motion concern the counts one and two of the accusation. The count one charged the man with predatory sexual assault against a child allegedly committed when the man was more than 18 years old at which he allegedly committed rape in the first degree against a female who was less than 13 years old. The count two charges was the same crime on the same legal theory against the same complainant. A New York Criminal Lawyer said the counts three and four charges were a criminal sexual act in the first degree with the same victim on the same dates as alleged in counts one and two. The count five charges endangering the welfare of a child encompassing all of the conduct charged in count one through four inclusive.
The man’s counsel first argues that the court should reduce the charge in counts one and two with rape in the first degree with the rule of lenity. The counsel notes that the elements of predatory sexual assault against a child are identical to those of rape in the first degree as charged. Counsel said based on records, the predatory sexual assault against a child is a class A-II felony with a mandatory minimum sentence of 10 years to life and a maximum of 25 years to life. By contrast, rape in the first degree is a class B felony, with a mandatory determinate sentence having a minimum of five years and a maximum of 25 years, followed by at least five years of post-release supervision. The two crimes also have different plea bargain restrictions with respect to the offense against a child charge. The plea must be at least to a class C violent felony whereas the man may plead guilty to a class D violent felony in satisfaction of a charge of rape in the first degree.
The man is charged with the offense of rape in the first degree and incest. However, the man moved his legal action for certain relief, discovery and inspection as well as dismissal of the accusatory instrument.
The man alleged that the provisions of penal law are unconstitutional and therefore the first count of the instant charge is defective and the motion to dismiss is proper.
A New York DWI Lawyer said the man based his argument on the constitutional guarantees of equal protection of the laws and due process of law under the applicable constitutional provisions. The two pronged attack states first that the statute is gender based and the format of that law therefore penalizes males because of their sex, while females similarly situated are not affected. It also denies to young male potential victims the protection it affords to young women, all without reasonable cause. Moreover, the counsel of the man further asserts that the law distinction in the instant case is based upon archaic notions and sexual stereotypes and cannot survive rational analysis.
The Facts:
Two male persons, defendants, forcibly abducted the victim (of the assaults) in an automobile. While being carried away in the car, the victim was given a choice of either participating in sodomy or submitting to rape but refused either alternative. A New York Sex Crimes Lawyer said after having been slapped around and frustrated in an attempt to escape, she was raped by each defendant, in turn, while the other held a knife-point to her throat and threatened to cut her if she didn’t stop screaming. Nevertheless, she resisted, but in vain. She was not examined by a doctor until 10 August 1965 and the police were not notified until 12 August 1965. She made no immediate disclosure to her parents although, within a day or two after the event, she told a neighbor about it. Other than the victim’s own testimony, there is no evidence that she was abducted by anyone, or that she was in the company of these defendants on the occasion in question or that at or about the time of the occurrences narrated by her, she bore visible marks of recent physical violence or rape.
A New York Sex Crimes Lawyer said the defendants were apprehended and questioned but denied having been in the girl’s company on the evening in question and specifically denied the charges made. There was no evidence that any knife was found or that either of the defendants had been known to possess one.
The Facts:
Defendant was originally charged with Rape in the First Degree, Sodomy in the First Degree, Sexual Abuse in the First Degree, and Menacing in the Third Degree.
Thereafter, defendant was found guilty of Sodomy in the First Degree but not guilty on the rest of the charges. Defendant was sentenced on 4 December 2002 to a 25 year determinate state prison sentence.
