Criminal Procedure

Published on: June 30, 2012

Supreme Court Discusses Date Rape

by Stephen Bilkis

On February 18, 1992, The Supreme Court for New York County, New York, discussed the application of punitive damages in civil suits against criminally convicted perpetrators would be appropriate in rape cases. A New York Criminal Lawyer said the case in question granted $10,000,000.00 in damages to the victim of a sexual assault in 1988. Her attacker was charged and convicted of rape, sodomy, and sexual abuse. The victim subsequently filed a civil suit to recover damages. The victim was a fashion model who relied on her unblemished physical beauty for her source of income. During the course of the rape, her attacker had slashed her with a knife. The slashing made it impossible for her to continue gainful employment as a model.

The 1991 amendment to the Civil Rights Law § 50-b demands that all victims of sex offenses regardless of their age be protected from having their identities disclosed to the public. The reason that rape victims identities require protection from disclosure is associated with the societal stigma that is placed on victims of sexual assault in general. This is especially true in the case of date rape. Date rape which is sometimes called acquaintance rape, is the most common form of rape in this country. Most cases of date rape go unreported. Prior to 1974, a rape victim had to have corroboration in the form of an eye witness or physical evidence to substantiate her claim of rape. That created an atmosphere of danger for any woman who was alone with a man. The court recognizes that date rape is a crime so old that it is recorded in the bible. For many years, if a woman willingly went to a man’s apartment or bedroom, the general opinion was that she knew that she would be expected to have sex with that man. If she then told him that she did not want to have sex with him and he forced her to have sex, society had the view that she had asked for it. She was considered to have known what she was getting into when she agreed to be alone with a man in an area that “good” girls did not go.

In 1988, mainly as a result of a book about it, date rape was put into the spot light. Many women reported during a comprehensive study to have suffered from forced sexual intercourse by dates. In fact, a staggering 20% of college students reported in 1985 that a date had forced them to have sexual intercourse against their will at least once. Many women did not even call forced sex on a date, rape. The FBI estimated that in 1988 60 to 80% of the women who were raped, were raped while on a date with their attacker. It was not until 1991, when the Violence Against Women Act was proposed that these issues were brought to the forefront of criticism in American public view. These proposed laws would make federal penalties available for rape prosecutions and require mandatory restitution to the victims.

Published on: June 30, 2012

Court Looks at Defendant’s Intent in Rape Charges

by Stephen Bilkis

On March 25, 1991 The Supreme Court, Appellate Division, Second Department in New York heard an appeal on a case of murder associated with an attempted rape. The elements of the offense are seemingly so bizarre as to warrant mention. The offender was originally convicted on May 10, 1984, with second degree murder, manslaughter in the second degree, and attempted rape in the first degree.

A New York Criminal Lawyer said he offender in this case stated that he knew the victim because he spent a good deal of time at her parents’ house. He fantasized about the victim repeatedly and became obsessed with the idea of having sex with her. Since, he knew that she would never allow him to have sex with her, he fantasized about raping her. He devised a plan to attack her and force her to have sex with him. He waited in her family home for her to come home and get into the shower. He went up the stairs and hid outside the master bedroom. He picked up a shillelagh, which is a type of knuckled walking stick. When she came out of the shower, he hit her on the head with the shillelagh. However, rather than forcing himself upon her, he became overwhelmed with the act of clubbing her. Her clubbed her repeatedly as she lay on the floor of her parents’ bedroom. He beat her until she was unconscious and covered with blood. He confessed in court to his crime.

He described to the court and the jury that he had intended to rape the victim, but once she was battered and covered with blood, he stopped. The offender filed an appeal with the Supreme court to overturn his verdict of guild to the attempted rape because the code section states that the man would be guilty of rape in the first degree if he had sexual intercourse by forcible compulsion. In order to attempt to rape, he would have had to attempt some action that would tend to further the commission of the rape. A New York Criminal Lawyer said the offender states that once he began to club the victim, he changed his mind about raping her and that none of his actions were in the effect of a rape. He contends that since the murder itself became the offense that any offense that is connected with rape should be overturned because there were no actions taken in the furtherance of that crime.

Published on: June 29, 2012

Court Discusses Issues of Discrimination and Equal Protection

by Stephen Bilkis

The Facts:

Sometime in 1977, defendant-one was indicted for the crime of Rape in the Third Degree, a criminal law violation; that defendant, over twenty-one years of age, engaged in a sexual intercourse with a female less than seventeen years of age.

A New York Criminal Lawyer said that sometime in March of 1978, defendant-two was under an eight count indictment; two counts of the indictment charged crimes of Rape in the First Degree; that defendant engaged in sexual intercourse with two females who were less than eleven years old.

Published on: June 29, 2012

Rape Charges Dismissed for Lack of Evidence

by Stephen Bilkis

The man was charged with kidnapping in the second degree, two counts of assault in the second degree, attempted rape in the first degree and attempted sexual abuse in the first degree. The man was also charged with similar counts previously involving another woman but was later dismissed.

Evidently, the only proof of the man’s alleged criminal acts was the testimony of the complainant, who first reported the incident to the police when the police came to interview her in connection with the reported attack on the other woman. The complainant specifically testified that one afternoon, she brought her three children to her neighbor’s apartment because she intended to go to a hospital to fill a prescription. On that event, the man was also there and volunteered to go downstairs to call a taxicab for her. It was about 4:15 P.M. or 4:30 P.M. when the complainant entered the taxicab. A New York Criminal Lawyer said the man then suddenly climbed in behind her and told the driver to pull off and keep driving. The ride lasted more than 10 minutes and maybe about two hours. At the cab, the man told the complainant that she was going to pay for what everyone had done to him. When the complainant responded that she didn’t know what the man was talking about, the man kept repeating that she was paying for what had happened to him and she should shut up. The man then began to hit the complainant about her face with his fists. The man continually assaulted the complainant throughout the ride. At one point, the man struck her in the back of her head with a gun and stated that he would kill the complainant because she was paying for what everybody did to him.

Afterwards, the man also asked the taxicab driver if he wanted to watch him killing the complainant. At another point, the man told the complainant that if she told anyone about what happened in the taxicab he would kill her son. As darkness set in, the ride ended at a vacant parking lot and the complainant could not recall the lot’s exact location but estimated that it was about two miles from her home. At the parking lot, the man pulled the complainant out of the taxicab. A New York Criminal Lawyer said the man again threatened to kill the complainant’s son if she screamed and he invited the taxicab driver to punch the complainant. The taxicab driver punched the complainant in her mouth with his fist. The man continually screamed at the complainant and again struck her in the back of her head with the gun. The man also punched the complainant in her stomach causing her to fall to the ground. As she passed into unconsciousness, the man told the complainant that he was going to rape her. The complainant woke up the next morning and the only clothes left on her was her shirt and socks. She had a lump on her head, her stomach and genitals felt sore, and her legs felt sore, wet and sticky. She found the rest of her clothes strewn about the parking lot.

Published on: June 28, 2012

Court Discusses Crime of Rape in the Third Degree

by Stephen Bilkis

The Facts:

Defendant was charged with robbery, larceny, assault (two counts), endangering the welfare of a child, and sexual abuse in the third degree; a six-count indictment on criminal law violations.

A New York Criminal Lawyer said these the crimes were allegedly committed on 26 September 1967, the prosecution was under the new Penal Law, which was enacted in 1965, effective as of 1 September 1967.

Published on: June 27, 2012

Defendant Contends Incriminating Evidence Being Used

by Stephen Bilkis

On August 24, 1977, a woman reported to the police that she had been raped that morning. One month after the reported rape, the District Attorney applied to the court to compel the accused to participate in a line up in connection with the investigation of the August 1977 rape. The application was denied by the court.

A year later, on August 24, 1978, another woman from the same town reported a rape in the early morning. She said that a man who drove a Cadillac Eldorado had raped her. She memorized the license plate. The police checked the license plate and it matched the license plate of a Cadillac Eldorado which was reported stolen.

Three hours after the report of the rape, the police found the Cadillac Eldorado parked by the roadside and the accused sleeping inside the car. A New York Criminal Lawyer said he was arrested and taken to the police station. Later that morning, he was arraigned for criminal possession of stolen property. At his arraignment, he was told that he had the right to be represented by a lawyer of his own choosing and if he cannot afford one, a lawyer can be provided for him but the accused refused to be represented by a lawyer.

Published on: June 26, 2012

Defendant Contends Incriminating Evidence From Prior Conviction Should Not be Included

by Stephen Bilkis

On August 24, 1977, a woman reported to the police that she had been raped that morning. One month after the reported rape, the District Attorney applied to the court to compel the accused to participate in a line up in connection with the investigation of the August 1977 rape. The application was denied by the court.

A New York Criminal Lawyer said year later, on August 24, 1978, another woman from the same town reported a rape in the early morning. She said that a man who drove a Cadillac Eldorado had raped her. She memorized the license plate. The police checked the license plate and it matched the license plate of a Cadillac Eldorado which was reported stolen.

Three hours after the report of the rape, the police found the Cadillac Eldorado parked by the roadside and the accused sleeping inside the car. He was arrested and taken to the police station. Later that morning, he was arraigned for criminal possession of stolen property. At his arraignment, he was told that he had the right to be represented by a lawyer of his own choosing and if he cannot afford one, a lawyer can be provided for him but the accused refused to be represented by a lawyer.

Published on: June 26, 2012

Issue of Consent Discussed in Rape Charge

by Stephen Bilkis

The Facts:

On 21 May 2008, as amended on 28 May 2008, defendant was convicted by the Supreme Court, Bronx County of rape in the third degree, a criminal law violation. He was sentenced as a second felony offender to a term of 2 to 4 years.

The Ruling:

Published on: June 25, 2012

Defendant Claim Law He Was Convicted of Has Been Repealed

by Stephen Bilkis

In 2007, a man was convicted of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. The case stemmed from an incident that was witnessed by an on duty uniformed police officer in Chemung County, New York. A New York Criminal Lawyer said the police officer was on regular patrol when he stated that he observed a van pull alongside a jeep that was about twenty to 25 vehicle paces in front of him. He testified at trial that he saw a light-skinned male who was wearing a white sweatshirt that had a design on the sleeves. He was wearing a light colored hat. The man leaned out of the passenger side window in the front of the minivan. He fired a pistol at the jeep and sped off when the officer began to chase him. During the pursuit, the passenger in the front of the van jumped out and ran. The officer followed him on foot and apprehended him hiding in bushes a short distance away. He was still wearing the light colored sweatshirt with stripes on the shoulders but he only had on one boot. The missing boot and the hat were located nearby as was a Sig Sauer P-239 9 millimeter pistol. A magazine that fit the weapon was located in a parking lot near the area where the defendant had fled the van. Ballistic testing on the pistol verified that the weapon was operable and that the bullet and casing evidence from the scene were consistent with the test bullets that were fired from that pistol.

Upon apprehension, the defendant stated that he was not the shooter and that the shooter was actually another man who was in the van. A New York Sex Crimes Lawyer said the trial court did not think that the explanation provided by the defendant was reasonable and he was convicted and sentenced to 15 years of imprisonment. One of the contentions that the defendant made when he filed an appeal was that one of the laws that he was convicted of had been repealed before he was sentenced. The law was repealed after he was indicted and before he was sentenced. The court of appeals agreed that this charge on his indictment should have been dismissed prior to the sentencing phase because the law had been changed.

While it may not seem common, it is more common than one would think. Laws are changed and revised every year, during this time of fluctuation in the laws, people are still being stopped and arrested. Long Island Criminal Lawyer said there is usually a time delay in the time between the change of a law, and the enactment of the changes. An officer and sometimes even officers of the court are not notified immediately upon the change of a law. It can be several months from the time that a law is changed to the time that the information on the change in the law reaches the courts and police officers. During that time, people are still being charged and convicted of the offenses. Defense attorneys are necessary to ensure that the defendant does not have to serve time on a charge that was repealed prior to his arrest. It is unreasonable to have a defendant serve time for a conviction on a law that does not exist at the time that his sentence if read. In this case, the defense attorney caught the problem and filed the appeal that enabled the courts to correct the injustice before the defendant spent years in prison for a crime that was not valid at the time of his sentencing.

Published on: June 24, 2012

Defedant Seeks to Have New Parole Hearing

by Stephen Bilkis

On November 17, 1990, a thirty-two year old plumber who was married with three children lived on West 143rd Street in Manhattan. At around 6:43 in the evening, the plumber met his brother’s wife’s boyfriend in front of 225 West 129th Street. The began to argue. They parted and went their separate ways. Later that night, the plumber and the boyfriend ran into each other again. This time, the boyfriend had another man with him. They were in a park near West 129th Street in Manhattan.

During this confrontation, a New York Criminal Lawyer said the boyfriend punched the plumber in the face. He fell to the ground and pulled out a handgun that he possessed a target license to carry. He fired at the boyfriend from his position on the ground. The boyfriend was struck in his chest and was killed. The plumber left the area, but later turned himself in to the police on November 26, 1990. The plumber stated that the shooting occurred in self-defense. He stated that when he was on the ground, he believed that the boyfriend was going to shoot him. He stated that he only shot him to prevent being shot. The police reports of the incident indicated that the boyfriend was not armed at the time of the shooting. The defendant plumber claimed that in 1982, the plumber had been shot by another man in a vehicle accident because the other man had hit his parked car. The plumber was shot twice during that incident after the other man went back to his own car to obtain his registration and insurance paperwork. When he returned to the plumber’s vehicle, he had a gun and shot him twice. In that incident, when the plumber was incapacitated on the ground, the other man attempted to shoot him again at close range. The gun misfired and the plumber’s life was spared. The plumber stated that the way that the boyfriend moved and his mannerisms, along with the 1982 history, made him believe that the boyfriend was in possession of a weapon and that he intended to use it.

The plumber did not have any criminal history, and at trial the Assistant District Attorney requested that he be sentenced to the minimum sentence required for his offense. That sentence would have been fifteen years to life. He was first eligible for parole in 2005. He was not a problem when he was in prison and did not have any disciplinary reports in his file. He worked during his prison term as a plumber’s helper in the maintenance department. He also worked as a program aide for the disabled and as a metal fabricator in the industries work area. He completed his high school equivalency degree and obtained an associate of arts of religious education college degree. A Brooklyn Criminal Lawyer said he also attended several behavioral and psychological programs to reduce his risk of recidivism upon release. These programs included Violence/Aggressive Behavior Programs, Basic Parenting, Hispanic Needs Program to Eradicate Violent Behavior.