In this Criminal case, a jury has found the defendant guilty of assault, second degree, with intent to rape. He is now before me for sentence and in connection therewith the District Attorney has filed a prior offense information which alleges that the defendant is now a second felony offender by reason of the fact that he was previously convicted, after trial, in the Commonwealth of Pennsylvania, of three crimes, viz., (1) aggravated assault and battery, (2) assault with intent to ravish and (3) rape.
A Queens County Criminal lawyer said that the defendant denies his status as a second felony offender. Defendant’s identity as the Pennsylvania convict is conceded but he contends that the prior acceptance by the same court of a plea of guilty to the crime of fornication makes it legally impossible for the crimes alleged in the information now before this court to be considered felonies if committed in New York and that therefore he is not legally a second felony offender. The fact that he was convicted, by the same court, upon his plea of guilt of the crime of fornication based upon a single incident, involving the same woman is claimed to obliterate the effect of the convictions of the rape, and the assault with intent to commit it, as felonies, it being contended that the crimes of fornication vis-a-vis the crimes of rape and assault with intent to commit rape are mutually exclusive.
The essence of the argument is that under Pennsylvania Law, adultery or fornication is consensual sexual intercourse, so that the yielding of consent was necessarily adjudicated by the Court when it accepted defendant’s guilty plea on the fornication charge and entered a judgment thereon. However, neither actual nor implicit ‘consent’ appears within the framework of the operative facts of record, and the defendant is limited to those facts.
Nowhere in the record does it appear that defendant resisted trial on the crimes alleged in Bill Number 59 on the ground of his prior conviction of the fornication, and his failure to raise the question, seasonably, operated as a waiver of his right to immunity from any second jeopardy then or now thought to have been involved.
If the trial court in Pennsylvania committed error in finding the defendant guilty as charged which is the conviction used by the District Attorney here as the prior felony, because his prior plea of guilty to the fornication indictment was a bar to any further prosecution for the same incident, his remedy was to take a direct appeal from the judgment of conviction entered against him thereon. He may not in this State seek to destroy the legal effect of the conviction under that indictment by referring to the contents of another indictment. So long as the judgment of conviction stands of record in the State of Pennsylvania and was not rendered by a court which ‘lacked jurisdiction of his person or of the offense charged against him, he may not in this State question its judgment’.
The Court is aware of the fact that in a case, the court said that since New York provides no method for questioning the validity of an out-of-state conviction that is used as a basis for a sentence under the New York multiple offender statute, the convict is entitled to a hearing in the federal court on the validity of the foreign conviction and a determination of whether it is a permissible basis for New York’s confining him longer than it otherwise would. However, as I read the opinion in that case it is limited to those situations in which the out-of-state conviction is ‘constitutionally void’.
Thus viewed, the case is not in conflict with the other cases. In the absence of any constitutional infirmity in the Pennsylvania judgment of conviction, upon which the People here rely, the rationale of the case applies. The defendant must therefore be sentenced as a second felony offender.
Assuming, however, that the plea of guilty to the fornication indictment, upon which a judgment of conviction was duly entered, may be considered together with the judgment of conviction entered on the assault and rape indictment, in determining the defendant’s status as a second felony offender, the same result would follow. The reason for that conclusion necessitates a recital of the pertinent facts.
By reference to certified copies of the Pennsylvania records it appears that a Philadelphia County Grand Jury returned four indictments to which defendant pleaded not guilty. All accused him of unlawful acts against the same woman. In pertinent substance, they charged him, respectively, with having conspired ‘to commit rape to the prejudice’ of the woman in question; with having ‘made an indecent assault by placing his hand upon her private parts’; with having ‘unlawfully made an assault and committed a battery upon her’; with having ‘unlawfully made an assault and committed a battery upon her, maliciously inflicting grievous bodily harm upon her’; with having ‘feloniously made an assault and committed a battery with the intent, forcibly and against her will, to ravish and carnally know her unlawfully’; with having ‘feloniously made an assault and committed a battery upon her and forcibly ravished and carnally her unlawfully and against her will’; and with having committed ‘fornication’ with her. Thereafter, defendant changed his plea to guilty under the fornication indictment, waived his right to trial by jury on the other three and, on the same day, was tried by the court and found not guilty of conspiracy but was adjudged guilty under indecent assault and assault and rape. Sentence was imposed upon the conviction under the last mentioned bill but was suspended on the others. The array of indictments was, of course, ‘intended to meet the exigencies of the proofs on the part of the commonwealth’ and possibly to provide a foundation for a bastardy adjudication in the event that it should prove that the woman had conceived a child through defendant’s violation of her person. In any event, the adjudication of guilt of assault and battery with intent to ravish and of rape meet the now established test of New York felony-status.
To Be Cont…
Rape is committed when there was carnal knowledge or sexual intercourse against the will of a woman. This case can be traumatic and may ruin the life of a woman. Here in Stephen Bilkis and Associates, our Queens County Rape lawyers will help these women to prosecute their assailants. By filing a proper case in court, such assailants will be made answerable to their acts. For other concerns, we have our Queens County Criminal attorneys who will be giving you advice in case of need. Call us now, we can help you in your legal dilemmas.