New York Criminal Lawyer Blog
The genesis of the proceeding is a notorious incident involving a brutal rape and robbery in 1973 in Manhattan. The issues presented are whether the man’s statutory and constitutional rights to a speedy trial were violated, and also whether the trial court should have conducted an inquiry of the jurors to determine whether they had read an article in a prominent newspaper about the trial on the day it commenced.
A New York Criminal Lawyer said while awaiting trial on his case, the man was arrested for an attempted murder and rape. When arrested, the man gave his name, his date of birth and his residence in Kings County, and his prior residence in Manhattan. He claimed that he had a wife who lived in Bronx. The man was tried but the jury, however, could not reach a verdict, and a mistrial was declared.
The man, under the different name, was convicted in Queens County of attempted murder and rape, and sentenced to a term of 10 years. He pleaded guilty in his case, with the understanding that he could seek to have his plea vacated if his conviction in Queens were reversed on appeal. The man was sentenced to a term of 10 years, which was to run concurrently with the term imposed on the Queens County conviction.
In 1976, the Second Department reversed the man’s conviction in Queens County. His plea in his case was consequently vacated. A woman posted cash bail for the man and gave a Washington, D.C. post office box as her address. The case was adjourned about a dozen times, with at least nine adjournments meaning either that the time was excludable or that the man was excused, since during that period, the man’s attorney was preparing, and the court was considering, his suppression motion, which had been made.
The man was arrested in Washington, D.C., and gave a different name. While his arrest appears on the man’s consolidated NYSID report, the New York County prosecutor handling the case at that time was unaware that the man was in Washington, D.C., and the State’s file contained no information on the man’s whereabouts.
The man failed to appear in the Queens County case. A warrant was issued for his arrest, and bail was forfeited. After several adjournments of the case in New York County, the man’s bail was forfeited and a bench warrant was issued. The man then vanished, insofar as the New York court system was concerned, for 26 years.
He was eventually returned to New York in 2004 on the 1978 New York County warrant. In his motion in New York County in which he claimed that his right to a speedy trial had been impaired, the man submitted an affirmation from his attorney in the Queens County prosecution, which had been submitted in support of a motion in Queens County in which the man sought to vacate the Queens’ bail forfeiture. A Queens Criminal Lawyer said he attorney stated that after the man’s arrest in Washington, D.C., in 1977, he had been found unfit to proceed and was committed to a hospital. The court in Queens County denied the motion, finding insufficient evidence that the man’s alleged incarceration in Washington, D.C. had prevented his appearance in Queens, and further noting that even if it were to find the affidavit and order of commitment credible, they only established the man’s whereabouts on the March 1978 committal date, and failed to explain why he did not appear in Queens in 1977.
In his speedy trial motion in his case, the man himself offered an affidavit, which he signed under a different name, in which he asserted that he had been involuntarily committed at the hospital in Washington, D.C., from 1978 until 1981, although hospital records offered by the State in opposition to the motion established that no individual by the name he gave had been treated at the hospital during that period. DNA evidence offered by the State established that he man had committed nine rapes in Maryland between 1987 and 1991, and two more in New Jersey in 1993.
Other evidence established that the man had been issued a passport under another name. According to the man, he relocated to Egypt from 1993 until he returned to the United States on August 28, 2003. On September 9, 2003, he obtained a birth registration card under a different name and with a different birth date. A few months later, the man obtained a Georgia driver’s license and a health insurance card using that same name.
In an application to purchase a gun, the man provided a different social security number than he had given previously, and claimed that he was not under indictment, not a fugitive, and had never been committed to a mental institution. When he provided his fingerprints, however, the New York State Division of Criminal Justice Services determined that the man had two different prior NYSID numbers. The new consolidated report under a new NYSID number listed his former names; with two different dates of birth, three different social security numbers, and two reported places of birth. He was returned to New York on the outstanding New York warrant in October 2004.
The man moved to dismiss the indictment on statutory and constitutional speedy grounds. The motion was denied.
Criminal Procedure Law requires that the State must be ready for trial within six months of the commencement of a felony action. In its 1973 incarnation, operative at the time that the prosecution of this case was initiated, the State could not be charged with a period of delay resulting from the absence or unavailability of the man, the Court of Appeals interpreted the provision to require a showing not just that the man had been absent or unavailable, but that the delay in readiness resulted from that absence or unavailability. The Legislature amended to overrule the decision in Sturgis, so that the State would not be required to establish a causative relationship between the man’s absence or unavailability and the State’s delay in preparing their case. Under the amendment, the State need only establish that the man is absent, and his whereabouts cannot be obtained by due diligence, in order for the time not to be charged against them.
Even if the earlier version of the Criminal Procedure Law governs the inquiry, the record supports a finding that the man’s absence was responsible for the delay in bringing him to trial. The man had previously been tried, and the jury was unable to reach a verdict. While the Court does not have the benefit of the jurors’ thinking in ascertaining why they could not reach a unanimous decision, it is self-evident that in a rape case the victim’s testimony, and, in particular, in-court identification of the man, are central to any quest for a conviction. Even though the victim had presumably identified the man at the prior trial, the jury still could not reach a verdict. Clearly, the man’s presence at a second trial, where the victim could identify her assailant to a new group of jurors, would be a sine qua non to a successful prosecution.
Further, at the time he was recaptured, the man had already been indicted and tried, while the man in Sturgis had not even been indicted at the time he went missing. The Court of Appeals specifically noted that the failure to indict did not in any way result from the man’s absence.
The facts presented are significantly distinguishable from those in the cases on which the man relies, and we thus conclude that his absence was the principal factor in the State’s inability to advance the criminal proceeding.
A New York Sex Crimes Lawyer said the man also argues that at the time of the October 3, 1978 Queens bail exoneration motion, his location was known. Yet, while the Queens County authorities may have known of the accuse man’s whereabouts at that point in time, nothing in the record establishes that the officials in New York County had actual knowledge of his location. The Court of Appeals has made clear that knowledge of the man’s location by another authority cannot be imputed to a prosecutor who lacks actual knowledge.
The man’s remaining argument is that the trial court should have conducted an inquiry of the jurors when, on the morning of the trial’s opening statements, the New York Times published a front-page article about the trial, to determine whether any jurors had read the article. According to the man, the article was highly sympathetic to the victim, and included statements that the DNA evidence had provided a conclusive link between the man and the crime, as well as dozens of rapes and similar crimes along the East Coast.
After the New York Times article appeared, the court delivered its preliminary instructions, which included the admonition not to read or to listen to any media accounts of the case. The court agreed at counsel’s request to remind the jurors not to read the newspapers, and accordingly, each day, the court instructed the jury not to read or listen to any account or discussion of the case in the newspaper, or on the radio or television.
In view of the repeated cautionary instructions, the court did not abuse its discretion in declining to conduct an individual inquiry of each juror. While the placement of the article on the first page heightened the possibility that a juror might see it, and the man argues that it is virtually unthinkable that none of the jurors would have seen the article, the record does not reveal any reason to believe that any juror had actually seen or read the article.
The man further argues that the admission by two prospective jurors that they had read the Post article demonstrates that the court’s instructions were ineffective in preventing the jurors from reading such news articles. The court, however, noted that while it had on the first day instructed the sworn jurors not to read any articles, it may not have given that instruction to all of the prospective jurors, which would explain why those two jurors had read the Post article.
Furthermore, the fact that the second juror had read the article, yet the defense did not use a peremptory challenge to excuse him, suggests that counsel believed that the court’s instructions would be sufficient to insure that the jurors-even a juror who had read an article about the case-would decide the case in accordance with the court’s instructions to base the verdict solely on the evidence presented at trial.
Accordingly, the judgment of the Supreme Court, New York County, rendered November 28, 2005, as amended November 30, 2005, convicting the man of rape in the first degree and robbery in the first degree, and sentencing him to consecutive terms of 8 1/3 to 25 years and 7 to 21 years, should be affirmed.
To make sure that woman and children are protected from the person who sees them as their prey, we should put the offenders in jail. During a sex crime related lawsuit, you may call a New York Criminal Attorney from Stephen Bilkis and Associates or a NYC Sex Crime Lawyers.