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Defendant Receives Mid-Trial Publicity

The Facts:

Defendant has a history of being arrested under different names.

A New York Criminal Lawyer said that on 12 August 1972, defendant was arrested for possession of burglar’s tools while on a fire escape. He gave a name, name-one, with a date of birth of 30 December 1946 and an address of 180 Saratoga Avenue in Kings County.

Sometime in June 1973, when defendant was arrested for the rape in the herein case, he told police his name, a name different than the aforesaid, name-two, with a birthdate of 10 November 1945, and that he lived at 432 East 10th Street. He also claimed that he did not have a criminal history.

On 25 September 1974, while awaiting trial on the herein case, the defendant was arrested in Queens County for an attempted murder and rape that had occurred on 18 July 1974. Defendant gave his name, the same as name-one and the same date of birth, but with a different address. He claimed that he had a wife who lived in the Bronx.

In November 1974, defendant was tried in the herein case as name-two. The jury, however, could not reach a verdict, and a mistrial was declared.

On 31 October 1975, defendant, as name-one, was convicted in Queens County of attempted murder and rape, and sentenced to a term of 10 years.

A New York Drug Possession Lawyer said on 18 November 1975, he pleaded guilty in the herein case, with the understanding that he could seek to have his plea vacated if his conviction in Queens were reversed on appeal. Defendant 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 defendant’s conviction in Queens County, his plea was consequently vacated. On 28 January 1977, an individual identified posted cash bail for defendant, and gave a Washington, D.C. post office box as her address.

During 1977, the herein case was adjourned about a dozen times, with at least nine adjournments marked “ex,” meaning either that the time was excludable or that defendant was excused, since during that period, defendant’s attorney was preparing, and the court was considering, his suppression motion, which had been made on 10 August 1977.

On 25 September 1977, defendant was arrested in Washington, D.C., and gave his name as name-three. While this arrest now appears on defendant’s consolidated NYSID report, the New York County prosecutor handling the case at that time was unaware that defendant was in Washington, D.C., and the People’s file contained no information on defendant’s whereabouts.

On 5 October 1977, defendant 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, defendant’s bail was forfeited on 15 February 1978, and a bench warrant was issued. Defendant then vanished, insofar as the New York court system was concerned, for 26 years.

Sometime in 2004, defendant was eventually returned to New York on the basis of 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, defendant 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 defendant sought to vacate the Queens bail forfeiture; that after defendant’s arrest in Washington, D.C., in 1977, he had been found unfit to proceed and was committed to St. Elizabeth’s Hospital on 9 March 1978.

On 10 October 1978, the court in Queens County denied the motion, finding insufficient evidence that defendant’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 defendant’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 the herein case, defendant himself offered an affidavit, which he signed as name-four in which he asserted that he had been involuntarily committed at St. Elizabeth’s Hospital in Washington, D.C., from 1978 until 1981, although hospital records offered by the People in opposition to the motion established that no individual by the name of defendant as name-four had been treated at the hospital during that period. DNA evidence offered by the People established that defendant had committed nine rapes in Maryland between 1987 and 1991, and two more in New Jersey in 1993. A New York Sex Crimes Lawyer said that other evidence established that on 19 August 1993, defendant had been issued a passport in the name of name-four. According to defendant, he relocated to Egypt from 1993 until he returned to the United States on 28 August 2003.

On 9 September 2003, defendant obtained a birth registration card as name-four, with a birth date of 30 December 1946. A few months later, defendant obtained a Georgia driver’s license and a health insurance card using that same name.

On 21 May 2004, in an application to purchase a gun, defendant 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 defendant had two different prior NYSID numbers. The new consolidated report under a new NYSID number listed his five 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.

Defendant moved to dismiss the indictment on statutory and constitutional speedy grounds. On 31 October 2005, the motion was denied.

Defendant appeals from the judgment of the Supreme Court, New York County, rendered 28 November 2005, as amended 30 November 2005, convicting him of rape in the first degree and robbery in the first degree, and imposing sentence; a notorious incident involving a brutal rape and robbery in 1973 in Manhattan.

The Issues:

The issues here are whether or not defendant’s statutory and constitutional rights to a speedy trial were violated and whether or not 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.

The Ruling:

The United States Supreme Court has identified four factors in considering whether a defendant has been deprived of his constitutional rights under the Sixth Amendment to a speedy trial: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. In New York, this inquiry has been interpreted to include five factors: the extent of the delay; the reason for the delay; the nature of the underlying charge; whether or not there has been an extended period of pretrial incarceration; and whether or not there is any indication that the defense has been impaired by reason of the delay. Regardless of which test is applied, however, the Speedy Trial Clause’s core concern is impairment of liberty.

Here, the sole reason for the delay in defendant not being tried earlier was due to his conduct. He fled, first, to another city, and then to another continent, and used multiple aliases and dates of birth. The conflicting pedigree information he provided had its obvious effect, to prevent authorities from realizing that defendant was wanted in New York to face trial. Defendant cannot now claim that he was deprived of his constitutional speedy trial rights since the delay was entirely attributable to his conduct in absconding from the jurisdiction and using aliases.

To determine whether defendant was deprived of his statutory right to a speedy trial, however, the court need not address the issue of whether CPL 30.30 is a procedural or substantive statute. Even if the earlier version of CPL 30.30(4)(c)(i) governs the inquiry, the record supports a finding that defendant’s absence was responsible for the delay in bringing him to trial. Defendant 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 defendant, are central to any quest for a conviction. Even though the victim had presumably identified defendant at the prior trial, the jury still could not reach a verdict. Clearly, defendant’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, defendant had already been indicted and tried. Parallel reasoning suggests that a defendant who flees the jurisdiction and uses multiple aliases, after indictment and a mistrial, was also attempting to avoid prosecution, and that this conduct hampered the People’s ability to bring him to trial. Undoubtedly, defendant’s absence was the principal factor in the People’s inability to advance the criminal proceeding. Moreover, the Court of Appeals has made clear that knowledge of a defendant’s location by another authority cannot be imputed to a prosecutor who lacks actual knowledge.

On the issue with regard to the jurors, the court denied defendant’s application, noting that it had emphasized in each round of the voir dire and at each recess that the jurors must not listen or read any account of the case in any news media, and concluding that there was no reason to question the jurors.

As a rule, a trial court has wide flexibility to determine what, if any, steps are required to assure a defendant’s right to a fair trial in light of midtrial publicity. Where a newspaper article appears in the middle of trial, the court retains discretion whether to ask the jurors if they have seen the article. The court may decide not to inquire about an article, which inquiry could have the effect of focusing the jurors’ attention on something that there was no indication any of them had seen. Furthermore, where the trial judge admonishes the jurors to avoid press coverage of the case, the defendant is less likely to suffer prejudice from mid-trial publicity.

Here, the jurors had been repeatedly warned that if the case were reported in the press or on the radio or television, they were not to listen to or read any account or discussion of the case other than the trial testimony. Defense counsel also discussed press coverage, and asked the jurors to assure him that they could follow the judge’s instructions and not read any articles about the case. Two prospective jurors had read a New York Post article. One informed the court, outside the presence of the other jurors, that he had read a Post article which has a bearing on the case; he was ultimately removed by a defense peremptory challenge. After another prospective juror reported that he had also read the Post article the previous evening, counsel asked the court to repeat its instruction, and the court complied, and repeated its admonition that the jurors should not read anything in the paper and should turn off the radio or television if there was any coverage of the case. Defense counsel asked the juror if he could promise not to consider anything he read in the article. The juror agreed, and confirmed that he would decide the case based on the evidence presented; he was seated as a juror.

Thus, 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 defendant 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 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 was 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.

As a result, the judgment of the Supreme Court, New York County rendered 28 November 2005, as amended 30 November 2005, convicting defendant 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, is affirmed.

If you find yourself involved in a situation similar to the above, get in touch with Stephen Bilkis & Associates immediately, for assistance. Our consultations are free of charge. You may talk to our New York Criminal Attorneys, more specifically, NY Arrest Attorneys, NY Rape Attorneys, etc. for advice. Legal proceedings can be so complicated and hard to comprehend. As such, let us help you. Call us and be informed of your legal rights.

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