New York Criminal Lawyer Blog

This is an Appeal by the defendant from two judgments of the County Court, Westchester County, convicting him of rape in the first degree, sodomy in the first degree, and endangering the welfare of a child, and rape in the first degree, and sodomy in the first degree, upon jury verdicts, and imposing sentences.

The Court agreed with the defendant’s contention that the trial court erred in denying his motion to dismiss the indictments because they were lacking in specificity. The defendant was charged under two indictments with multiple counts of rape, sodomy and endangering the welfare of children, arising out of offenses which allegedly occurred between 1980 and 1985. Each count charged the defendant with an offense, alleged to have occurred “on or about and between August 1, 1984 and May 3, 1985”.

A New York Criminal Rape lawyer said that the defendant was convicted under 14 counts of this indictment. Of the three counts in another Indictment of which the defendant was convicted, one charged him with burglary in the first degree alleged to have occurred “on or about and between November 5, 1980 and December 31, 1981”, and the other two counts related to conduct occurring between January 1, 1981, and December 31, 1981.

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This is a proceeding maintained by the Corporation Counsel of the City of New York and by the District Attorneys of each of the five counties of the city in pursuance of section 22-a of the code of Criminal Procedure. An injunction is sought to restrain defendant, a book publisher, from selling and distributing ‘Memoirs of a Woman of Pleasure’ popularly known as ‘Fanny Hill’ by John Cleland written about 1749.

The statute authorizes such an action as this by the public officials who have been joined as plaintiffs where a book is ‘obscene, lewd, lascivious, filthy, indecent or disgusting’. After a trial, the court at Special Term dismissed the complaint. The Appellate Division reversed by a divided court and, finding that the book comes ‘within the proscription’ of section 22-a, granted the injunction and other relief sought by plaintiffs in full scope. From the resulting order, the publisher appeals before the court.

The court notes that the suppression of a book requires not only an expression of judgment by the court that it is so bad, in the view of the Judges, that it is offensive to community standards of decency as the Legislature has laid them down, but also that it is so bad that the constitutional freedom to print has been lost because of what the book contains. The court observes that history and tradition stand against the suppression of books.

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A Kings Criminal Lawyer said that, the defendant has issued a subpoena to a Broadcasting Companies for certain outtakes of a TV show regarding the instant sex crimes. The outtakes are alleged to contain statements of four witnesses that will be called by the government on their direct case. The Broadcasting Companies has moved to quash the subpoena. The other defendant has issued a subpoena to the Production Company, for all materials written or recorded of any interview with the complainant the latter has moved to quash the subpoena.

A Kings Sex Crime Lawyer said that, during the year 1993, the Broadcasting Companies was granted permission by the New York City Police Department to observe and film the workings of the New York City Police Department. It was preparing for a reality show about the New York City Police Department ultimately titled “NYPD 24/7.” Among the numerous stories that the Broadcasting Company was following was the homicide of one of the victims in this case. It followed and filmed the investigators in this case while the police tried to solve the sex crime. A break came when a person gave certain information to the police. Additionally, the police were able to connect the murder to an alleged rape/kidnapping. As a result of all the information gathered, the defendant was arrested.

A Kings Prostitution Lawyer said that, on July 13, 2004, an episode of NYPD 24/7 was aired containing taped interviews with the detectives in charge, the family of the victim and the informant. The defendant wishes to have all the unused film from the program to see if any of the witnesses will, while testifying for the People, contradict anything that the witness stated on the unused film. He seeks the outtakes for possible impeachment material. The defendant can neither identify any inconsistent statement nor identify a single piece of outtake that he will introduce into evidence during the trial or other proceeding.

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A Kings Criminal Lawyer said that, this is an appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 14, 1978, convicting him of criminal sale of a controlled substance in the second degree, upon a jury verdict, and imposing sentence.

A Kings Sex Crimes Lawyer said that, in the circumstances of this case, the defendant was not deprived of a fair trial by the references to 696 Washington Avenue as a “main distribution point” for heroin and the undercover officer’s statement that he “went back to purchase some more narcotics.” Both statements were the subject of objections followed by curative instructions, after which no further objection or motion for a mistrial was made. Thus, the court “must be deemed to have corrected the error to the defendant’s satisfaction”. As to the third claim of error testimony that a second man entered the building, gave the defendant money and requested “halves” not only was there no objection to the testimony but on cross-examination defendant deliberately elicited a repetition of the testimony concerning the second man and used it in summation to imply that the undercover officer was confused as to who had actually sold him the heroin. Thus, there is no reason to invoke interest of justice analysis to reach this particular issue.

The issue in this case is whether the record demonstrates the existence of such prejudice as to have effectively denied the defendant a fair trial.

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The child in this case was a 14 years old girl, who underwent a medical examination, and revealed that she was 12 weeks pregnant. At first, the girl denied that she had been sexually active or that she was being sexually abused at home. She later claimed that she had been raped at school by a classmate.

The girl eventually told the investigating police officers that she had consensual, unprotected intercourse with a 14 year old boy. She explained that she lied about being a rape victim because she did not want her parents to know that she was having sex. After she gave the police a written withdrawal about the accusation, the case was closed.

The girl turned 18 years of age. Over a year later, when she was 19 years old, she informed the police that she had been sexually assaulted years earlier by her step-grandfather and her previous statement aren’t true.

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On October 23, 1981 the criminal defendant was convicted of kidnapping in the first degree and related crimes. The defendant was sentenced to a term of 20 years to life imprisonment. Briefly, he and two others attempted to rob a man outside of the man’s apartment. The robbery was not successful and the intended victim was able to retreat back into his apartment, but in doing so he left his three-year-old daughter and his friend behind in the hallway. The friend talked his way out of the situation and left; the would-be robbers took the child and then concocted a scheme to blackmail the victim and his wife. But this effort was foiled as well, the men were arrested, and the child was recovered without harm.

None of the actions of the defendant or the other two men in any way contained or even intimated a sexual component. Nonetheless, upon his December 2001 release from prison to lifetime parole, the defendant was notified that the Sex Offender Registration Act (SORA) deems him to be a sex offender because, under the definition of kidnapping in the first degree, the victim of the kidnapping was less than seventeen years old and the offender is not the parent of the victim. Accordingly, he was told to appear in court so that his classification level could be determined. At that appearance, the defendant argued that because he was never accused of any form of sexual impropriety toward the child pornography or anyone else, applying the act to him was arbitrary and capricious and violated his constitutional rights.

By decision and order, the court determined that, pursuant to the statute, the defendant is subject to the classification and registration provisions of the Sex Offender Registration Act because his criminal act is among the enumerated crimes to which the act applies. A second hearing was ordered to determine what level of classification the defendant should be assigned. At that hearing the defendant, again through his appointed counsel, more specifically argued that application of the SORA to him violated his constitutional rights under the Due Process, Equal Protection, and Ex Post Facto Clauses.

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The case involves a respondent who is the subject of a petition for sex offender civil management pursuant to Sex Offender Management and Treatment Act (SOMTA, Article 10 of the Mental Hygiene Law of 2007). He moved to dismiss the petition on the basis that certain provisions of the statute as applied to him are violative of the United States and New York State constitutions. The respondent’s motion was denied.

The following are the relevant facts that led to the denial:

On 3 May 1995, the respondent was sentenced in the Supreme Court of New York County for convictions of Kidnapping in the Second Degree, Promoting Prostitution in the Second Degree and Bail Jumping in the First Degree. He received concurrent indeterminate sentences of 9-18 years incarceration on the kidnapping charge, 4-8 years on the promoting prostitution charge and 3-6 years on the bail jumping charge. According to the State, respondent’s kidnapping and promoting prostitution charges included conduct in which he restrained the victim, repeatedly rape her, forced her to engage in prostitution, beat her and forced her to ingest narcotics, all of which allegedly occurred in 1992. The respondent also has prior convictions for unlawful imprisonment, attempted assault and forcing a person to engage in prostitution.

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A man pleaded guilty to information charging him to one count of computer transmission of material involving sexual exploitation of minors. The aforementioned charge arose from allegations that the man had transmitted via the internet three photographs of teenagers engaged in sexually explicit conduct. The man was sentenced to home detention for a period of fifteen months and five years’ probation from the child pornography offense, and was directed to undergo mental health treatment during the entire term of his probation

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The board of examiners of sex offenders informed the man that since he had been convicted of a sex offense in another state yet he resides in New York State, he may be required to register as a sex offender under the provisions of the sex offender registration act. The letter invited the man to submit any materials that he wished the board to consider in making their determination.

The phrase “good cause” under the venue provision at issue here lists three non-exclusive examples of issues which can be considered in making a venue change determination under the statute. They are the convenience of the parties, the convenience of witnesses and the condition of the respondent. With respect to the convenience of witnesses factor, the Court finds that the State has not made the evidentiary showing which is required by law for the Court to make a determination that this factor weighs in favor of granting the State’s motion.

As noted above, the “convenience of witnesses” ground for a change of venue under Article 10 is strikingly similar to one of the grounds for a change of venue under the C.P.L.R (§510[3]), which provides that the “convenience of material witnesses” and “the ends of justice” may provide a basis to change venue under the C.P.L.R. In these motions, both the State and the Respondents cite to cases decided under the general C.P.L.R. venue provision to argue that this factor weighs in favor of granting or denying the instant motion.

Under C.P.L.R. §510(3), it is well settled that “a change of venue based on the convenience of witnesses may only be granted after there has been a detailed evidentiary showing that the convenience of nonparty witnesses would in fact be served by the granting of such relief”. Four criteria should generally be met by the moving party in such motions. First, the affidavit in support of the motion must provide the names, addresses and occupations of the witnesses. Second, the moving party must disclose the facts the witnesses will testify to, so the trial court can determine whether the testimony would be necessary or material. Third, the movant must show that the witnesses are in fact willing to testify. Finally, there must be a showing as to how the witnesses would in fact be inconvenienced if venue were not changed.

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