New York Criminal Lawyer Blog

In this Criminal action, defendant appeals from a judgment of the Supreme Court, Kings County, convicting him of rape in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of suppression of identification testimony.

A Queens County Rape lawyer said that on the day after the Supreme Court denied suppression of identification testimony, the defendant agreed to plead guilty to rape in the first degree in exchange for a promised determinate sentence of nine years of imprisonment. During the course of the ensuing plea allocution, the Supreme Court advised the defendant of the terms of its sentencing commitment, and briefly explained that he would be waiving his right to appeal.

Although the defendant was asked directly by the Supreme Court whether he understood the nature of the waiver of the right to appeal, the defendant instead responded by asking the Supreme Court a question about the mandatory fees that would be imposed upon him as a result of his conviction. The defendant did not acknowledge in any manner that he understood the nature of the waiver. After both the Supreme Court and defense counsel attempted to clarify the fee issue, the Supreme Court asked the defendant whether he understood the explanation, and he replied “yes.”

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The defendants were indicted for the sex crimes of rape in the first degree, sodomy in the first degree, sex abuse in the first degree and assault in the second degree. Although the alleged sex crimes occurred on April 4, 1975, the trial did not commence until October 21, 1975. The trial court determined that the provisions of Criminal Procedure Law (CPL) were applicable to the trial of this case.

Evidence of a victim’s sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense defined in article one hundred thirty of the penal law. Pursuant to CPL, the defendants made an offer of proof concerning the complaint’s prior sexual conduct. After a hearing and a review of the various exhibits submitted by defendants, the trial court ruled that subdivisions 1 through 4 were not applicable and that the evidence offered was not relevant and admissible in the interests of justice under subdivision 5. Evidence of the complainant’s prior sexual conduct was therefore barred at the trial.

The defendants contend that application of CPL violated the United States Constitution, which prohibits the Legislature from passing an ex post facto law. The Supreme Court held that it is well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited. Although CPL restricts, to some extent, a defendant’s ability to attack the credibility of a complaining witness, the statute is not an impermissible ex post facto law. The limitation does not deprive the accused of a defense and certainly does not involve as substantive a right. Furthermore, if the limitation were to raise substantial ex post facto concerns in any particular case, such problems would be obviated by subdivision 5 thereof, which permits the admission of evidence of a complainant’s prior sexual abuse conduct where the interests of justice would thus be served.

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A Nassau Sex Crime Lawyer said that, by way of habeas corpus, in an unusually literate Pro se application, the criminal defendant attacks his detention, pending trial, in the Nassau County Jail. The papers give a broad overview of, and an insight into, conditions in the Nassau County Jail, the way it is conducted and the life of both prisoners and those being held for trial because of an inability to post bail.

A Nassau Rape Lawyer said that, the defendant-petitioner (hereinafter, defendant) was arraigned on December 27, 1973, on an indictment which charged him with kidnapping in the second degree, rape in the first degree and robbery in the first degree. On another indictment he is charged with an attempt to commit the crime of murder, kidnapping in the second degree, rape in the first degree, sexual abuse in the first degree, and other crimes. According to the People, he has spent approximately 22 out of his last 25 years incarcerated in various institutions.

A Nassau Rape Lawyer said that, the heart of Petitioner’s argument is the indistinguishable experience in confinement of convicted and detained persons here in the Nassau Co. Jail. The latter is as much imprisoned in a ‘correctional facility’ as is the former. The confinement experiences of both are more than parallel; they are indistinguishable. The entire spectrum of Do’s and don’ts, of privileges and restrictions imposed upon the convict is equally imposed upon the detained. The two eat the same food, use the same library and canteen, wear the same ‘prison blues’, and are alike called ‘prisoner’ and/or ‘inmate’. They live in the same cells, write home on the same jail letterhead; know the same mail censorship and the same rule as to what kind of paper to write on and how many pages to write, as well as what they are permitted and not permitted to write about. Theirs are identical existences. They know the same liabilities and punishments for infractions (‘Hole’), the same denial of newspapers; they visit with their families through the same 10 7 double pane of plastic glass, forbidden and denied to touch and embrace. They know the same TV time schedule, are attended by the same physicians, retire and arise at the same time, are counted by the same correctional officers, advised and represented by the same ‘Inmate Council’, managed under the same security system operating out of the same centralized control center. The same educational classes are available to both, the same religious services. The lives of both are oversee red by the same official attitudes. If the convicted and detained are different, sired by distinctive legal categories, framed in different legal concepts, then these differences exist only on paper, and not in fact.’

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A Queens Sex Crimes Lawyer said that, defendant is a convicted sex crime offender pursuant to Correction Law § 168-a having pled guilty on April 6, 1994, to one count of Attempted Rape in the First Degree, a lesser-included crime of Count I of the Indictment charging Rape in the First Degree under Penal Law § 130.35(3), commonly known as “statutory” rape. All other charges in the Indictment (one count of Sexual Abuse in the First Degree under PL § 130.65(3) and 2 counts of Endangering the Welfare of a Minor) are also based upon the age of the victim. There are no allegations of forcible compulsion per se. Defendant has challenged his proposed “moderate” risk level designation under the sex Offender Registration Act as not consistent with the facts of his case and his due process rights.

Defendant was arrested on March 5, 1993, and charged with Rape in the First Degree under Penal Law § 130.35(3), Sex Abuse in the First Degree, and Endangering the Welfare of a Child based upon the complaint of ten-year old victim who stated 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 the child, age 15, who was photographed by Defendant, both with her consent and surreptitiously, in her underwear following her refusal of Defendant’s requests for “sexual contact.” There was no admission to this accusation although the minutes of 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.

A Queens Criminal Lawyer said that, defendant pled guilty before now-retired Justice to Attempted Rape in the First Degree with respect to the allegations concerning the victim. The then-58-year-old Defendant, a live-in friend of the victim’s grandmother with whom both the victims also resided, admitted he had “had sex” with the victim and knew she was “under eleven.” On April 18, 1994, Defendant was sentenced to one and a half to four and a half years incarceration. Defendant was released from prison on March 1, 1996. On May 12, 1997, Defendant appeared in response to notice and was appointed counsel. Challenging his recommended assessment at risk level 2, pursuant to Correction Law § 168-n(3), on August 25, 1997, Defendant requested a hearing. A full hearing was held on December 17, 1997.

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This is an action for false imprisonment, malicious prosecution and civil rights violations which stems from plaintiff’s arrest in the Village of Lake Placid, Essex County, on 2 November 1995 for rape and sodomy in the first degree.

The complainant was a woman that plaintiff had met at a party the previous evening. At approximately 3:30 A.M. on 2 November 1995, plaintiff arrived at the cottage where the complainant was staying—an encounter which he claims was prearranged—and was led to the complainant’s bedroom by her cousin, CS. After some small talk, according to plaintiff, they engaged in consensual oral sex and sexual intercourse which did not last for long because the complainant became sick. When she did not respond to his inquiries about “what was going on”, plaintiff got mad and left to drive JC, a friend who had accompanied him to the cottage, home. When plaintiff returned to the cottage shortly thereafter to check on the complainant, she was crying and had told CS that plaintiff raped her. After contacting the police, the complainant was taken to a local hospital by two Village of Lake Placid patrolmen for a rape kit examination. Thereafter, she was taken to the police station and interviewed by Village of Lake Placid Police Detective D. She gave him an oral statement accusing plaintiff of having nonconsensual sexual intercourse with her, which was later reduced to writing, albeit after plaintiff’s arrest.

Upon learning that the police were looking for him in connection with the complainant’s allegations of a sex crimes, plaintiff voluntarily presented himself to the police station between 8:45 and 9:00 A.M. on 2 November 1995. He too gave an oral statement to D, claiming that he engaged in consensual sexual relations with the complainant a few hours earlier. D’s questioning of plaintiff stopped when he requested the presence of an attorney. At approximately 9:50 A.M. that day, D placed plaintiff under arrest. After the complainant had second thoughts about pursuing the charges, the District Attorney ultimately decided not to prosecute the matter, finding insufficient credible evidence to support a prosecution. Plaintiff’s action against defendant followed. Supreme Court’s order denying defendant summary judgment has prompted this appeal.

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Respondent who is charged with committing acts which, were she an adult, would constitute the crimes of Prostitution, Resisting Arrest, Obstructing Governmental Administration in the Second Degree, and False Personation, has moved pursuant to Family Court Act § 311.4(3) for an order directing the substitution of a petition alleging that she is a Person in Need of Supervision for the petition alleging that she is a juvenile delinquent.

A Queens County Sex crimes attorney said that the juvenile delinquency petition filed by the Presentment Agency alleges that the respondent, offered to engage in sexual conduct with an undercover police officer in exchange for payment, in violation of Penal Law § 230.00. The petition further alleges that respondent resisted arrest by fleeing from police officers who intended to take her into custody for committing the crime of Prostitution, and that she obstructed governmental administration by physically resisting arrest and by refusing to follow the directives of police officers after she had been taken into custody. Assault was not charged.

With respect to the prostitution charge, the supporting deposition of an undercover police officer, states that in the vicinity, “a known prostitution location”, the respondent asked what he want. He replied, in sum and substance, a quickie’, which intended to mean oral sex, and made a hand gesture which indicated oral sex’. The respondent then said, in sum and substance, if he want a blowjob’, which he understood to mean oral sex. He asked the respondent how much for the blowjob and she replied, in sum and substance, fifty dollars’. The respondent then got inside of the vehicle.”

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A Nassau Sex Crimes Lawyer said that, before the Court is an Article 10, child abuse and neglect proceeding brought by the Department of Social Services (hereinafter referred to as “DSS”) on behalf of the children. The Respondent is charged, as a parent substitute, with sexually abusing the child, the first child. The respondent mother is charged with failing to protect the child. The petition on behalf of the second child is brought as a derivative petition against both respondents.

A Nassau Rape Lawyer said that, the petitions allege that the respondent parent substitute/father committed, or allowed to be committed, a sex offense upon said child, as defined in the penal law. The respondents parent substitute/father and mother failed to provide said child with proper supervision or guardianship, and said child’s physical, mental and emotional condition has been impaired and/or are in imminent danger of becoming impaired as a result of the failure of the respondents to exercise a minimum degree of care, requiring the aid of this Court, to wit: a) The respondent parent substitute/father has committed sex offenses upon this six (6) year old child. The respondent parent substitute/father placed a condom on his finger and inserted that finger into the six year old child’s rectum. The respondent parent substitute/father did this, on 12/25/07, while babysitting the first child and his biological child, was present in the same bed. b) On or about 12/25/07, the first child told the respondent mother that the respondent parent substitute/father inserted his finger in her butt. The respondent mother found the condom. On or about 3/26/08, the respondent mother told a detective from the Nassau County police department that she wanted to stop the investigation as she wanted the respondent parent substitute/father to return to the residence. The respondent mother is unwilling or unable to protect said child. Said child is in imminent danger of physical, mental and emotional harm due to the failure of the respondent mother to provide a minimum degree of care in the circumstances.

A Nassau Criminal Rape Lawyer said that, a fact-finding hearing was held over a number of dates: March 5, 2009, March 6, 2009, March 9, 2009, March 10, 2009, March 13, 2009, April 13, 2009, April 16, 2009, May 4, 2009 and May 18, 2009. The Presentment Agency, DSS, called seven witnesses. The respondents did not call any witnesses, nor did the Attorney for the Children.

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This is a proceeding wherein the criminal court in this appeal asks for the first time to consider the admissibility of expert testimony proffered on the issue of the reliability of a confession. While in a proper case expert testimony on the phenomenon of false confessions should be admitted, the expert here did not propose testimony relevant to this defendant or her interrogation. As a result, the trial judge did not abuse his discretion when he declined to hold a Frye hearing to assess whether any principles about which the expert proposed to testify were generally accepted in the scientific community, or to permit the expert to testify.

Defendant A, a teacher’s assistant at Veda’s Learning World in Queens County, New York, is alleged to have sex abused a four-year-old boy left in her care. She is accused of pressing the boy’s hand to her partially exposed breast and touching his penis on three separate occasions between January 2 and 11 February 2006. During the last of these sexual encounters, defendant is also alleged to have placed the boy’s penis against and into her vagina.

On 19 February 2006, a Sunday, the boy who was recovering from a viral rash in his rectal area, was bathed by his mother. He repeatedly complained of itching causing his mother to ask him if anyone had touched him in his “private areas.” The mother had asked her son this question before and he had always replied “no, mommy.” But this time, the boy answered “yes,” that “A,”, “went up and down, up and down on his ‘pee-pee.'” He asked his mother not to tell anyone, though, because “teacher” wanted him to keep this secret.

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