New York Criminal Lawyer Blog

Published on: June 1, 2012

Defendant Charged with Sex Crimes, Robbery

by Stephen Bilkis

A man was convicted of criminal cocaine possession and sale; and criminal marijuana sale when he sold cocaine and marijuana to an undercover police officer at nine different times and at nine different places.

Because of the sales of controlled substances to undercover police officers, the police had enough bases for a search warrant. When they searched the man’s apartment they found cocaine there. The man pleaded guilty to criminal sale and was sentenced to a prison term of 7 ½ to 15 years. After his conviction and pending his sentencing, the man was still out on bail. He undertook before the Court to appear whenever his presence was required and he also undertook not to be arrested on new charges.

During the time of his conditional release, the man had sex with a thirteen year old girl who was his neighbor’s daughter. He had sex with her in his apartment five different times. The thirteen year old girl got pregnant and the man moved to a different apartment in another building.

Published on: June 1, 2012

Defendant Charged with Sexual Abuse of Minor

by Stephen Bilkis

In January 20, 2002, a woman was living in with her fiancé who was then thirty-nine years old. The woman’s mother and 13 year old sister came over to visit them and they stayed in the same house that the woman shared with her fiancé.

A New York Criminal Lawyer said that while the 13-year old sister was visiting, the fiancé assaulted the 13 year old. He committed sodomy by inserting his male organ into the young child’s anus (rape). The man was charged with sodomy, sexual abuse and endangering the welfare of a child. He was found guilty by a jury and the trial court sentenced him to a prison term of two to six years.

After he was convicted and sentenced, the man moved to set aside the jury verdict. He claims that his right to a fair trial was violated when the panty of the 13 year old was admitted into evidence even if the panty was recovered by the police thirty-seven days after the date of the commission of the offense. He claims that the panty should not have been admitted into evidence as it was not shown clearly by the prosecution that it had not been contaminated when it stayed in the clothes hamper in the apartment of the child’s sister for thirty-seven days where it could have been wet or degraded. A Long Island Criminal Lawyer said he also claims that the lawyer who defended him was ineffective. He claims that his lawyer failed to cross-examine the forensic scientists and experts presented by the prosecution. He claims that his counsel failed to present experts to rebut the claims of the experts presented by the prosecution. He further claims that his conviction should be vacated because the prosecution hid evidence that would have exculpated him.

Published on: May 31, 2012

Court Discusses Risk Levels of Sex Offenders

by Stephen Bilkis

The Facts:

On 5 March 1993, defendant was arrested, and charged with Rape in the First Degree, Sex Abuse in the First Degree, and Endangering the Welfare of a Child based upon the complaint of child-one, a ten-year old who stated that defendant had removed her clothing, spread her legs, and placed his penis inside her vagina. He later gave her five dollars to keep secret what had happened. The Sex Abuse charge was dismissed upon a technical error in the Grand Jury presentation.

Defendant was also charged in the same indictment with endangering the welfare of child-two, a 15-year old, photographed by defendant, both with her consent and surreptitiously, in her underwear following her refusal of defendant’s requests for sexual contact. A New York DWI Lawyer said there was no admission to the accusation although the minutes of the child’s Grand Jury testimony and one of the photographs submitted by the District Attorney do provide the necessary clear and convincing evidence that such incident took place.

Published on: May 31, 2012

Court Discusses Jurisdiction Over Juvenile Defendant

by Stephen Bilkis

The Facts:

Two witnesses testified at a fact-finding hearing.

On 7 September 1978, sometime after 5:30 P.M., the victim alleges that he heard rocks strike the side of his house. A New York Drug Possession Lawyer said that such an event had occurred previously and he testified that he knew that the persons who were responsible for those past acts lived across the street from him. Accordingly, he armed himself with a stick and proceeded to go across the street to a green house. The green house was the home of the two respondents. As he approached the house, the witness testified that sticks were thrown at him. While he was attempting to knock on the door, one of the respondents approached him shaking a stick. Fearful of being hit with the stick, the victim left the porch, intending to return to his own home. At that point he struck one of the respondents; it was not clear which one, on the “backside”. Two or three seconds later the other respondent spoke to him and said to him: “You hit my brother.” This respondent then struck the witness in the arm with a broom or shovel handle. The witness testified that he then fell to the ground and the same respondent struck him in the eye with a metal tipped stick which caused his eye to be enucleated. As a result, the victim has lost the sight of his left eye.

Published on: May 31, 2012

Defendant Contends He Was Not Given Psychiatric Evaluation

by Stephen Bilkis

A man was arrested for alleged acts of sodomy with a 12-year-old male child and was indicted on five counts, all involving such acts. He pleaded not guilty. Although the record is incomplete as to the various steps which were taken thereafter, it is clear that the man was sent to the Hospital for some form of psychiatric examination and was reported insane. A New York Sex Crimes Lawyer said the County Court thereupon committed him to the State Hospital. Almost two years later, he was returned to the County Court, certified as sane, and he withdrew his plea of not guilty and pleaded guilty to the fourth count of the indictment charging him with sexual assault with intent to commit the crime of sodomy. He was once again sent to the County Hospital for observation with pending sentence. The record contains no report or certificate from the Hospital indicating that the man received a psychiatric examination pursuant to the Penal Law, and there is no proof that the Court had or considered such a report before it sentenced the man. The record show that on April 6, 1955, upon motion of the man’s retained counsel, the report of the Psychiatric Division of the County Hospital, finding the man sane is confirmed. On May 16, 1955, the County Court ordered that the man be imprisoned in the State Prison at hard labor, under an indeterminate sentence, the maximum of such imprisonment to be his natural life and the minimum thereof one day. It is not contradicted that the year the man was sent to the State Prison’s psychiatric clinic that prison was closed after having been in operation for more than four years. The record does not disclose when the man was transferred from the State Prison to Attica Prison where he is presently held. The claim of the man’s counsel that Attica Prison does not have nor has ever had any facility for psychiatric treatment during the time of the man’s confinement therein is not refuted.

The man’s contention that he was not given a psychiatric examination pursuant to Penal Law was not explored at the County Court hearing. The man’s assertion that the report of the County Hospital made after his guilty plea does not disclose that the man was a psycho path or of violent character and was bare of any descriptive sexual abnormality finds support in the only record from that court dealing with the subject which simply confirmed a finding that the accused is sane. The notation supports the probability that the examination was in compliance with the Code of Criminal Procedure, indicating the man’s capability of understanding the charge and making his defense, rather than in compliance with Penal Law.

If the further hearing should confirm the man’s position, the Court is constrained to remit the matter to the County Court for proceedings consistent with the memorandum which specifically provides that no person shall receive the indeterminate sentence until a psychiatric examination shall have been made of him and a complete written report thereof shall have been submitted to the court. A New York Sex Crimes Lawyer said the statute requires such an examination in every case in which a sentence of from one day to life may be imposed, regardless of whether such a sentence is in fact imposed.

Published on: May 31, 2012

Defendant Contends Penal Law Unconstitutional

by Stephen Bilkis

The complainants, a prostitute and a patron seek a judgment declaring sections of the Penal Law unconstitutional. The laws prohibit prostitution and patronizing a prostitute.

A New York Criminal Lawyer said the action was commenced and the opponents, the City Mayor and the City Police Commissioner moved to dismiss on the ground that the prostitute and the patron lacked standing. Another opponent, the County District Attorney moved to dismiss on the same ground and also that the complaint failed to state a cause of action. The complaint was dismissed for failure to state a cause of action with leave to re-plead. The complainants filed an amended complaint and all the opponents moved to dismiss on the same grounds alleged by the District Attorney after the first complaint was filed. The complainants filed a cross motion for summary judgment. Before deciding the motions, the Court determined whether any of the prior rulings are LAW OF THE CASE.

The Law of the Case doctrine is a kind of intro-action res judicata or matter that was already settled and cannot be raised again. Within the framework of a single action, it prevents re-litigation of a point already adjudicated in it.

Published on: May 31, 2012

Court Discusses Hearsay in Establishing Criminal History

by Stephen Bilkis

On this proceeding, the court argues on the matter that in what extent can a psychiatrist rely on out-of-court materials, such as pre-sentence reports and department of parole records, in compiling a history of sex offenses committed by a man in order to formulate a psychiatric opinion and whether the man has a mental abnormality as that term is defined in the law.

A man was convicted of attempted rape in the first degree of a 13-year-old victim. The decision of the offense is considered established and may not be arguable. The records from the proceeding are acceptable at trial. In addition, the man’s criminal history includes a number of additional convictions. Previously, the man was convicted with rape in the third degree were the victim was a 15 years old. The underlying facts supported by court felony complaint sworn under oath by victim, grand jury decision, presentence report and certificate of conviction. The man was also convicted with rape and sodomy in the first degree when he engaged in forcible sexual intercourse with his 12-year-old daughter. Moreover, the man was convicted with impairing the morals of a minor when he allegedly fondled the 11-year-old victim. Lastly, the man also convicted with attempted assault when he allegedly fondled the eight-year-old victim.

At trial, the complainant presents the testimony of a licensed social worker who compiled the documents settling forth the man’s criminal history. The woman’s testimony established that she collated the documents from various sources and compiled a report used by the office of mental health colleagues in the proceedings. Afterward, the testimony of the complainant’s expert psychiatrist established that he relied upon the same documents, as well as his interview with the man, in formulating his expert opinion.

Published on: May 30, 2012

Court Weighs Possibility of Taking DNA Samples

by Stephen Bilkis

A man is charged with menacing in the third degree, sexual misconduct, sexual abuse in the third degree and harassment in the second degree. The opponent moves for an order to permit the taking of DNA samples from the man’s cheek cells for the purpose of testing and analysis.

The opponent alleges that the charges stem from an incident which the man and the complainant went to the man’s home. When both of them were inside the house, the opponent asserts that the man turned the complainant around and penetrated the complainant from the back with the man’s penis. A New York DWI Lawyer said that the opponent also asserts that the complainant’s attempts to stop the man resulted in a struggle where she sustained a laceration on her chin.

A New York DWI Lawyer said that the opponent claims that upon contacting the police, the complainant was treated and at the hospital a rape kit was prepared and taken to the office of the chief medical examiner for DNA results. The opponent asserts that the DNA results revealed that dried secretions were found on the left breast.

Published on: May 30, 2012

Defendant Claimed that Repeated Playing Offensive Video Swayed the Jury

by Stephen Bilkis

The state of New York filed a complaint charging a man with three counts of forcible touching, three counts of sexual abuse in the second degree, three counts sexual abuse in the third degree, two counts of endangering the welfare of a child, aggravated harassment in the second degree, and two counts of harassment in the second degree. A New York Drug Crime Lawyer said the charges were based on the man’s conduct toward a 13-year-old male that involved a sexual contact, exhibiting to the child a sexually explicit video, and other communications in an explicitly sexual nature.

At the beginning of the jury trial, the criminal court granted the of New York’s motion to dismiss the two counts of harassment in the second degree. At the end of the trial, the man was convicted with all the remaining counts after the evidence was presented which includes the victim’s narrative testimony of the man’s sexual conduct, the admission into evidence of the video which had been recovered from a laptop that the man had produced to the police as his personal property and the testimony of a forensic psychologist on the subject of adolescent sexual abuse syndrome. A New York Drug Possession Lawyer after the sentence was imposed, the man was designated as a level three sex offender.

Consequently, the man filed an appeal on which he argues that playing the video repeatedly to the jury served only to inflame the jury’s passions and was of questionable evidentiary value. However, the victim asserted that the man had informed him that the man was the actor in the video, which showed a male masturbating and performing other acts of a sexually explicit nature. Based on records, it is irrelevant for the commission of the crime of endangering the welfare of a child, whether the identity of the person in the video is known. Although playing the video evidence more than once was the basis of one of the two counts of endangering the welfare of a child and, as a general rule, photographs and similar evidence is acceptable.

Published on: May 30, 2012

Defendant Contends Grand Jury Indictment

by Stephen Bilkis

A New York Sex Crimes Lawyer said a man was convicted of rape, a sex crime, in South Carolina sometime in October 19, 1992. He was sentenced to a prison term and he has fully served his prison sentence. During his incarceration, the Sex Offender Registration Act was enacted which requires all convicted sex offenders to register their address within ten (10) days from changing one’s address. The man was designated as a level three sex offender. After his release, the man failed to verify his new address with the local law enforcement agency. He was charged with a violation of the Correction Law, that is, that he failed to register as a sex offender.

When he moved from South Carolina to the state of New York in July 6, 1999, after his release, he registered as a sex offender in New York. A New York Sex Crimes Lawyer said that sometime on November 12, 2002, the man changed his address from New York to Hoboken, New Jersey. He notified the Division of Criminal Justice Services of this change of address. After this, the Division of Criminal Justice Services has not received any other change of address from the man until July 2006.

Evidence has been acquired by the local law enforcement in Kings County that the convicted men changed residences from New Jersey back to King’s County in New York. He first lived on Herkimer Street and about two months later, moved from Herkimer Street to Gates Avenue but he did not inform the police of this change of address nor did he notify the Division of Criminal Justice Services.