New York Criminal Lawyer Blog
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. The man was charged with sodomy, sexual abuse and endangering the welfare of a child, and other Sex Crimes. 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. He also claims that the lawyer who defended him was ineffective. A Nassau County Criminal Lawyer said that the 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.
The trial court denied the motion to set aside the conviction and jury verdict. The only question before the Supreme Court is whether or not the order denying the motion for vacating his conviction should be upheld.
The Court held that the prosecution did not withhold evidence that could have exculpated the accused. The interviews of all the witnesses against him were all recorded on video and transcripts of the interviews were provided and there was no exculpatory evidence in those interviews.
The admission of the panty was not improper. There was testimony to the effect that the thirteen year old girl wore a similar panty as the one presented; she wore it on the date when the assault against her was perpetrated by the accused; that although it was in the dirty clothes hamper for thirty-seven days inside the apartment of the victim’s sister, there is no evidence that it had been contaminated or degraded. The chain of custody over the panty was unbroken from the time that the police recovered it until the time that it was tested and brought to court for presentation; the forensic expert was able to extract the accused’s DNA from the panty.
To say that the lawyer who represented him failed to prepare or research so that he can ably cross-examine the scientific and expert witnesses presented by the prosecution is not borne out by the record. The lawyer is not required to present other expert witnesses to rebut the testimony of the prosecution’s witnesses.
In order to set aside a conviction on grounds of newly discovered evidence, there must be proof that the evidence though existing at the time of the trial could not have been produced as its existence was discovered only after the trial; there must also be proof that even with due diligence, the evidence could not have been produced at trial; the evidence must be of such a nature that, had it been presented during the trial, the man would have been acquitted; the evidence must be germane and material to the issue; it cannot be merely cumulative or merely evidence that contradicts or impeaches the evidence presented.
Clearly, a New York Criminal Lawyer said not any of these circumstances exist in this case and so the motion of the accused to set aside the guilty verdict must be denied.
Having sex with a minor is statutory rape. Sodomizing a child is sexual abuse. A Suffolk County Criminal Lawyer said these are serious sex crimes that carry with it not only the possibility of imprisonment but other penalties that will haunt you long after you have finished serving your sentence. You need the services of a lawyer who can advise you. Call Stephen Bilkis and Associates today and ask to speak with their New York Sex Crime attorneys.