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Appellate Court affirms judgment

In the County Court of Suffolk County, a certain defendant stood convicted of the crimes of Attempted Grand Larceny in the Second Degree and Unauthorized Use of a Motor Vehicle. When the defendant appeared for sentencing, a second felony information was filed against him charging that he had been convicted in the Second Judicial District Court of the State of Utah on 15 November 1955, of the crime of Assault with Intent to Commit Rape. The defendant admitted said prior conviction but denied that the foreign crime if committed in the State he was in would be a felony.

As provided for under Section 76-7-7 of the Penal Code of the State of Utah, every person who assaults another with intent to commit rape, the infamous crime against nature, or mayhem is punishable by imprisonment in the state prison not less than one nor more than ten years. Rape, on the other hand, is defined under Section 76-53-15 of the Penal Code of the State of Utah. According to the code, rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under any of the following circumstances: when the female is under the age of thirteen years; where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent; where she resists, but her resistance is overcome by force or violence; where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution, or by any intoxicating, drug or anaesthetic substance administered by or with the privity of the accused; when she is at the time unconscious of the nature of the act, and this is known to the accused; and where she submits under the belief that the person committing the act is her husband, and this belief is induced by artifice, pretense or concealment practiced by the accused with intent to induce such belief. It must be noted that the circumstances listed in the aforementioned foreign statute are comparable to the various theories of rape set forth in Section 2010 of the New York Penal Law. However, the circumstances under the last one are not included in any New York theory of rape.

Under the rules, in determining whether the defendant was previously convicted of a felony within the meaning of Section 1941 of the Penal Law, the Court is precluded from going behind the foreign statute and examining the acts which resulted in the defendant’s foreign conviction, as held in the landmark case of People v. Olah. Where a serious doubt exists such as the case at bar, the doubt should be resolved in favor of the felon. In view of this, the second felony information must be dismissed. Consequently, the defendant was ordered to be produced before the Court for imposition of sentence upon his New York State conviction.
Meanwhile, on 22 January 2010, the County Court of Suffolk County rendered judgment convicting another defendant of rape in the third degree, upon his plea of guilty. The defendant appealed after arrest.

On appeal, the Appellate Court affirmed the judgment of the County Court.
Here, the defendant’s claim that he was deprived of the opportunity to address the County Court at the time of his sentencing, in violation of CPL 380.50, was unpreserved for appellate review. This is pursuant to the court’s rulings in the cases of People v Green; People v Chin; People v Chi Fong Chen; People v Ramirez. In any event, based on the records of the case, the County Court substantially complied with the requirements of the statute. On defendant’s remaining contentions, the court rejected them for they were bereft of merit.

Suffolk County Assault Attorneys and Suffolk County Rape Attorneys are just a few of the numerous experts at Stephen Bilkis & Associates. To speak with one or for a free consultation, contact our firm via phone or visit any of our offices. Our experts would be more than honored to be of assistance to you.

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