New York Criminal Lawyer Blog
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’s counsel cites previous proceedings at which it addresses the overlap of elements in the substantive crimes of misdemeanor coercion in the second degree and felony coercion in the first degree. The man’s counsel reads the cases as arguably having similar but not identical elements. As counsel notes, both cases talk about a distinction between the two crimes not in terms of differing elements but in terms of what the courts have termed the heinous quality. The man’s counsel further cites the practice commentary, which states that the crime of predatory sexual assault against a child was added in. The crime requires that the offender be 18 years old or more and commit the crime of first-degree rape, criminal sexual act, aggravated sexual abuse or course of sexual conduct against a child and that the victim must be less than 13 years old. The definitions of first-degree rape, criminal sexual act and course of sexual conduct against a child include the commission of such crimes against a child less than 13 years old when the actor is 18 years old or more. The effect of the addition of the crime of predatory sexual assault against a child was to upgrade the classification of the four crimes from a class B to a class A-II felony when the victim is a child less than 13 years old and the actor is 18 years old or more.
The man’s counsel argues that neither of the previous proceedings, nor the commentary applies directly to the case because the elements of the two crimes are absolutely identical. The man’s counsel further argues that the legislature gave no indication of granting a prosecutor the power to choose between prosecuting particular conduct as a predatory sexual assault against a child or as a rape in the first degree based on the age differential between actor and victim.
Lastly, the man’s counsel further urges the court to find that the conduct alleged in the charges is not egregious or heinous to such a degree as to warrant the man being charged with predatory sexual assault against a child.
In response, a New York Sex Crimes Lawyer said that New York state argues that the man was not charged with rape in the first degree and therefore the man has lack of standing to challenge the constitutionality of that law, that the case law upholds the discretion of the prosecutor to decide under which statute to prosecute the man in a number of different situations, since the crime of predatory sexual assault against a child is not unconstitutional. There is no requirement that the court reduce those counts to charge rape in the first and the court has already sustained the legal sufficiency of the grand jury evidence with respect to the counts charging predatory sexual assault against a child in the court’s order.
Although the man’s counsel has argued that both the predatory sexual assault against a child statute and the rape in the first degree statute are unconstitutional as applied to him, as the focus of his argument is that leaving to the prosecutor to decide which statute to charge, without guidelines in the law, is a denial of equal protection to him, and is fundamentally unfair because of the huge disparity in sentencing requirements and plea restrictions for the two crimes.
The man’s counsel has not argued that either statute is ambiguous or facially unconstitutional. As the trial notes, the man is not charged with rape in the first degree. The New York state therefore rightly argues that the man had lack of standing to challenge the offense. Consequently, the court is not free to review the constitutional arguments based on the issues raised by the defense. A New York Drug Crime Lawyer said the motion to dismiss or reduce counts one and two is therefore denied.
The man’s fourth request in the motion, in the event that the court declined to dismiss or reduce counts one and two, is for a bill of particulars revealing the substance of the man’s conduct relating to those counts, that justification of the decision to charge the man with assault against a child rather than with rape in the first degree. As a rationale supporting the request, the man’s counsel states that he needs the requested information in order to decide whether or not to ask the court, in the event of a trial, to instruct the jury on the lesser included counts of rape in the first degree. In response, the New York state argue that the request is untimely, and therefore not properly before the court. The New York state further alleged that the defense has not shown good reason for a late demand.
Based on records, since the appellate cases have determined essentially that each of the component crimes of predatory sexual assault against a child is a lesser included the offense of that crime, the court would be prepared to submit the lesser crime to the trial jury in the alternative. The request for a bill of particulars is therefore not only untimely and not in compliance with the legal procedure. It is also unnecessary and is therefore denied.
The man seeks to compel the revelation of the victim’s psychiatric and medical records and the victim’s school records for the same period of time. The man’s counsel argues that all of the materials are exculpatory or material and necessary, and must therefore be revealed by the opponent. In the alternative, the man’s counsel asks the court to issue a judicial subpoena to produce the records for in camera inspection by the court.
In support of the request for school records, counsel cites a telephone call, monitored and recorded by the police, in whom the victim reportedly tells the man that she was kicked out of school because of what they did. The man’s counsel interprets the words as the victim blaming the man for her school troubles because of the alleged sexual conduct.
The man’s counsel presented the affidavit of the man’s mother concerning the conversation that the mother had with the victim’s mother in which the victim’s mother allegedly told the man’s mother that the she was having a hard time with the victim because of the victim’s bipolar disorder and because of the medications prescribed for that condition. The man’s mother states that the victim’s mother told her that the victim’s mother believed that the victim was going to be expelled from school because of her lying and the temper-tantrums that she threw in the classroom. The man’s further quotes the victim’s mother as expressing her frustration with her daughter about lying all the time, which was a symptom of her bipolar disease.
With respect to the school records, the New York state responds that the requested records are not in their possession and are therefore not discoverable property. They also assert that the records would only be available through use of a subpoena and the records predating the year of the alleged criminal acts cannot be exculpatory, and have also not been shown to be anything more than potential impeachment material. The prosecution cites previous trials for the view that potential impeachment use at trial is not a sufficient validation for issuance of a subpoena and the demand is based on counsel’s speculation as to what information would be found in the records. The branch of the defense motion is therefore denied.
With respect to the demand for mental health records of the victim, the man’s counsel cites previous proceedings as support to his request for disclosure of information bearing on the victim’s credibility. Since the victim’s testimony would have direct bearing on the man’s guilt or innocence, the information is relevant to the credibility of such a witness is considered exculpatory or material and helpful to the defense and must be disclosed. It is alleged from the victim’s mother, by affidavit of a person with whom the mother spoke, that the victim suffers from bipolar disease and has a habit of lying on a regular basis.
The New York state responds by acknowledging that in some cases disclosure is warranted but only when the crime victims are prone to hallucinations or fantasies. The man’s counsel is directed to submit on notice to the district attorney a proposed judicial subpoena returnable in the court’s chambers concerning the records.
Lastly, the man’s counsel asks that a combined hearing on impeachment material and issues be conducted before the start of the trial. Since the opponent didn’t object, the request is granted.
It is important that every child should have a proper guidance from his/her parent or somebody who can care for them because lots of negative influence could affect their attitude and upbringing. The NY Sex Crime Attorneys can assist you with your sexual assault related offense. If you want to have a NY Criminal Attorney to represent you in your lawsuit, call the office of Stephen Bilkis and Associates.