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The complainant however indirectly asserts that the sufficiency of the accusatory instrument is at issue

The complainant commenced an action by filing information that accuses a man of sexual abuse in the second degree. The complainant and a detective, attests that the man did enter the bedroom of the mentally retarded 16 year old female and did expose his erect penis. The man did allegedly take the victim’s hand in his own and put the victim’s hand on his erect penis and did masturbate himself.This is a sex crime and a criminal act.

The source of the said information and the basis of the belief are the interview and statement of the victim and the interview and statement of admission of the man
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The man was arraigned on the criminal charge. Three months after commencement of the action, the county’s department of social services commenced a neglect proceeding against the alleged victim’s mother and the man’s sister. Domestic Violence could be involved.

Shortly thereafter, the county commenced a derivative proceeding against the man, who is thus also the respondent in the family court. Consequently, the family court matter is apparently still pending.

By letter, the man’s attorney expressed his view that the charge against his client should be dismissed. To support the said contention, the attorney enclosed the affidavit of the alleged victim and the other by the alleged victim’s mother. Both were sworn to before the man’s attorney.

The affidavit revealed that the alleged victim withdraw her accusation. The mother, by hers, offers her view that the acts of the man could not have occurred as she was with her daughter in their shared bedroom at the time the acts are alleged to have taken place.

The complainant then moved for virtually identical relief in the criminal action for a drug.

The complainant point on a law which prohibits an attorney from communicating on the representation with a party whom the attorney knows is represented by a lawyer in that matter unless the attorney has the prior consent of the lawyer representing the other party. They also point to the purpose of affording minors representation in the family court as a basis for disqualification in the action.

They also point out the differences between the signature on the statement notarized by the man’s attorney, and that on a supporting deposition, a copy of which they submit on the motion and which they erroneously assume is attached to, and therefore a part of, the accusatory tool.

With regard to the cross-motion, the man’s counsel specially addresses the point which is for dismissal on account of the complainant’s claimed failure to be ready for trial within the statutorily prescribed period. In that regard, the man’s counsel offers upon information and belief only the direct conclusions that the man has never asked for any postponement to prepare for trial.

The complainant however indirectly asserts that the sufficiency of the accusatory instrument is at issue, have unilaterally determined that the cross-motion should be held in abeyance until their motion is decided and they thus decline to address the cross-motion’s various points. Sources revealed that they focus their reply on the disqualification issue as it pertains with the man’s case, and in the process make passing reference to the need to have the man’s attorney appear as a witness in order to determine the authenticity and circumstances of the alleged withdrawals. By his reply, the man, among other things, requests that his applications to dismiss be granted as unopposed.

Consequently, the court decided to deny the complainant’s motion for an order disqualifying the man’s attorney and precluding use at trial of statements of prosecution witnesses taken by the counsel or his associates. The court also denied the man’s cross-motion for an order dismissing the accusatory instrument as facially defective, in the interests of justice, or on account of the complainant’s failure to be ready for trial within the prescribed time, and suppressing statements he made to law enforcement officials.

At Stephen Bilkis and Associates office, legal experts assist and guide individuals who seek legal representation. If you’re one of those victims of abuse you can ask help from the Nassau County Criminal Attorney or Nassau County Family Lawyer. However, if you’re one of the persons involved in felony, you ask assistance from the Nassau County Assault Attorney.

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