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:
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contentions that the defendant made when he filed an appeal was that one of the laws that he was convicted of had been repealed before he was sentenced. The law was repealed after he was indicted and before he was sentenced.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.
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.
A man filed a motion for him to file a late notice of explanation. The man’s counsel has established good reason for late filing of the notice which is attached to the moving papers. As explained on the counsel’s letter, a New York Criminal Lawyer said the alleged criminal acts occurred more than two years ago and making the notice of explanation was difficult. The state of New York noted on the record that they do not oppose the request and the notice will be deemed timely and is directed to be filed.
The second and third branches of the man’s motion concern the counts one and two of the accusation. The count one charged the man with predatory sexual assault against a child allegedly committed when the man was more than 18 years old at which he allegedly committed rape in the first degree against a female who was less than 13 years old. The count two charges was the same crime on the same legal theory against the same complainant. A New York Criminal Lawyer said the counts three and four charges were a criminal sexual act in the first degree with the same victim on the same dates as alleged in counts one and two. The count five charges endangering the welfare of a child encompassing all of the conduct charged in count one through four inclusive.
The man’s counsel first argues that the court should reduce the charge in counts one and two with rape in the first degree with the rule of lenity. The counsel notes that the elements of predatory sexual assault against a child are identical to those of rape in the first degree as charged. Counsel said based on records, the predatory sexual assault against a child is a class A-II felony with a mandatory minimum sentence of 10 years to life and a maximum of 25 years to life. By contrast, rape in the first degree is a class B felony, with a mandatory determinate sentence having a minimum of five years and a maximum of 25 years, followed by at least five years of post-release supervision. The two crimes also have different plea bargain restrictions with respect to the offense against a child charge. The plea must be at least to a class C violent felony whereas the man may plead guilty to a class D violent felony in satisfaction of a charge of rape in the first degree.
This is the case wherein the court reiterated its New York rule that one who acts solely as the agent of a purchaser of narcotics cannot be convicted of the crime of criminal sale of a controlled substance.
A New York Criminal Lawyer said that an undercover police officer befriended the defendant in various bars. The police officer, disguising as a drug user, thereafter mentioned to the defendant that he was interested to buy ecstacy. The defendant indicated that he might be of assistance in doing so and invited the undercover to call him whenever needed. In the course of their meeting in a bar, the police officer advised the defendant of his intention to buy cocaine or heroin. The defendant estimated the cost of the quantity of approximately four ounces of cocaine which was between three and four thousand dollars.
After some days, the defendant and the police officer proceeded in a bar in Manhattan. The defendant entered the premises alone, presumably to meet the man who was the seller. The defendant reported to the police officer that the price of the narcotics would be $4,000. The police officer paid the amount and the defendant re-entered the bar to give the payment to the seller. The two proceeded to a discotheque where the actual delivery of the drugs took place.
On September 25, 2003, the Associate Village Justice of the Supreme Court, issued a search warrant directed to “any police officer of the County of Nassau.” A New York Criminal Lawyer said the search warrant found that there is probable and reasonable cause for the issuance of the warrant to make a search with the inspector and his agents, between 09/25/03 and 10/02/03 in the hours between 6:00 A.M. and 9:00 P.M. of the entire premises in 335 Princeton Street, Westbury, NewYork. The warrant categorically states that the seizure of the evidence shall be limited to the taking of still photographs and videotape pictures of the inside and outside of the premises.
The Senior Building Inspector of the Village of Westbury believed that the subject premises has been used or is being used as a two (2) family dwelling and the cellar is being used as an illegal apartment dwelling in violation of sec. 79-2, sec. 83-6, sec. 112-7, sec. 184-4, sec. 248-6 A and sec. 248-283 of the code of the Village of Westbury and NewYork State Multiple Dwelling Law sec. 30 and sec. 34. A Supervisor in the Department of Public Works testified that the garbage generated from the home was 3 to 4 times the normal amount at every pick up.
Subject to the defendant’s motion to suppress, the parties stipulated to the receipt into evidence of the “return” on the warrant indicating what was seized during the search.
In New York, a system of using an offender’s previous crimes to predict his recidivism rates is used. This system classifies sex offenders into degrees. A New York Criminal Lawyer said that certain offenses will cause the offender to be classified as a higher risk to the public if they are released without tighter supervision. In one case, the offender was convicted on July 29, 1982 for attempted rape in the first degree. This offense is considered a class C felony sex offense under Penal Law §§110.00, 110.05 and §130.35. The Sex Offender Registration Act, requires a hearing be held in the Supreme Court to ensure that the designated level of risk that is assigned to an offender is appropriate as it relates to their offenses. In this case, the court took into account, a previous sex offense that had been committed while the offender was still a juvenile.
The offender’s counsel moved to reduce his sex offender status rating because his juvenile record should have remained sealed and not considered as relevant to the current crime. The court did not agree. They admitted that juvenile offenses are deemed vacated after the offender has been adjudicated and served their sentence, however, when it comes to a prior felony sex crime conviction, the court is reticent to not include it. Just because an offender is a juvenile when he commits the offenses that are included in the Sex Crime Registration Act, it does not preclude the court from considering his prior actions when they determine the risk that he poses to commit the same or similar offense again in the future.
The offender’s counsel petitioned the court to provide a presumptive override to the decision based on the use of the juvenile history in determining the offender’s recidivism rate. The court maintained that Risk Assessment Guidelines that were developed by the Board of Examiners of Sex Offenders found that it was appropriate to utilize all information that may be a predictor to the likelihood that the offender will pose a significant risk to the public safety. The risk points that are allocated are based on the facts that are acquired with review of the offender’s criminal history. Failure to include all information that is available on an offender’s criminal history would skew the results of the guidelines.
It is difficult to understand the immensity of the responsibility that serving on a jury can be for some people. In this age of electronic information obtainable on the internet and even on a person’s telephone, it can be a daunting task for a juror to follow the instructions provided by the judge and make a determination only on the information that is presented in the courtroom. It is no surprise then when a juror is found guilty of misconduct for investigating a case on their own to attempt to help them make their decisions. As students, we are all taught to research a topic before we can make an informed opinion and not to rely solely on information that is provided by word of mouth. A New York Criminal Lawyer said when assigned to a jury and told that they are not allowed to make an informed decision based on research, many can feel lost and compelled to research the case on their own. This was the case, with one juror who was sitting on a non-sequestered jury, hearing the details of a serial sex crime offender’s case (rape). During the trial, the woman went to dinner with several friends and their acquaintances.
At that dinner, the woman brought up some of the details of the case that she was sitting on the jury for. She stated that the case was about a teen aged defendant who had cut up and raped a woman as part of a gang initiation. She allegedly stated that she had made up her mind about the defendant and his guilt in the situation. However, she stated that she knew she had a duty to deliberate the case with the other jurors before she actually made up her mind. She stated that the jury was a diverse group of people and she would need to hear what everyone had to say about the situation. She was unaware that one of the dinner guests was a defense attorney until later that night when they were walking to the train station. As they were walking, the woman talked to the attorney and found out that she was a defense attorney. The woman asked the attorney what she thought about DNA evidence because she had Googled the defense attorney involved in the case on her computer and discovered that he had a private practice. She asked pointed questions about DNA evidence and if she had ever had an opportunity to represent anyone who had their DNA match a crime several years after the offense had occurred.
The defense attorney informed her that it was not appropriate to discuss the case and that she could not answer the question for her. A Manhttan Criminal Lawyer said that the juror told the attorney that all of the information was in, but that the jury had not received the charge yet. The attorney attempted to change the subject. The following Monday morning, the defense attorney who worked for Legal Aid discussed the situation with her supervisor and her supervisor contacted the defense attorney who was handling the case. It was several days later before the chain of phone calls got to the correct people. By that time, the defendant had been convicted of the crime. As soon as the defense attorney for the defendant learned of the juror’s impropriety, he filed a motion for a mistrial on the case.
On January 21, 1996, the Sex Offender Registration Act was created by the legislative body of the New York State legal system. It provided that each offender who commits a sexually related offense, must be registered with the state as a sex offender. A New York Criminal Lawyer said the risk level that is assigned to each offender is based on that offender’s prior criminal history and the chance that the offender will commit the same or similar offence in the future.
When an offender commits a sexually related offense, they are provided with a hearing date where the facts and circumstances surrounding their most recent conviction are compared with any prior convictions. This comparison is designed to look for trends in behavior that could predict the actions of the offender in the future. Since, no one in the justice department, claims to be a fortune teller, there is no truly accurate measure of whether or not, an offender will commit an offense in the future. Bearing this in mind, the courts must look at the actions that this person has taken in the past. Courts have historically been resistant to including previous criminal activities in the measurement of current convictions. Just because a person has offended in this manner in the past does not necessarily mean that the person committed that crime on that date. A Westchester Criminal Lawyer said this contention of law is why it is not admissible for a prosecutor to discuss the offender’s predilection to commit a particular type of offense in court unless they have received prior approval from the court to do so based on a direct link to the offense that is at trial.
That is not the case when discussing the risk for recidivism of a sexually based offender in the legal system. History can show if an offender has an uncontrollable predilection to committing the offense that he is being tried for. For instance, if an offender has committed ten prior rapes, the chances that he will rape again are logically pretty good. However, if a person was convicted of rape under circumstances that were shaky at best, and it is the only offense that is in the person’s criminal history, he is less likely to commit the same or similar offense again. He is certainly less of a risk than the offender with ten like crimes prior to the conviction of his eleventh offense.
The Facts:
On 21 March 2002, defendant was sentenced in Michigan to a two-year probation following his plea of guilty to attempted home invasion in the first degree under Criminal Law.
A New York Criminal Lawyer said that on 22 August 2003, defendant was charged in Bronx County with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees, respectively.
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