Criminal Procedure

Published on: June 1, 2012

Plaintiff Sues Employer for Sexual Offenses

by Stephen Bilkis

The complainants filed an action that alleges forty-six allegations of fact in support of three causes of action. Their first two causes of action claims include sexual assault by the creation of a hostile work environment and the constructive discharge. The third cause of action is for intentional infliction of emotional distress. A New York Criminal Lawyer said all of the complainants seek for a decision without trial on liability on the entire complaint.

The complaint alleges that the complainants were working at the clinic when they discovered that the doctor had installed and used a hidden camera in the only working restroom.

Consequently, a New York Criminal Lawyer said one of the complainant’s asserts thirty-eight allegations of fact in support of five causes of action. The first two causes of action claim consist of sexual assault by the creation of a hostile work environment, for intentional discrimination and constructive discharge. The third cause of action is for violation of the right to privacy. The fourth cause of action is for intentional infliction of emotional distress. The fifth is for tort. The said complainant seeks to have decision without trial on liability on the first, second and fourth reasons of action. She asserts that she was a medical office clerk at the clinic and at some point the doctor placed an air purifier containing a hidden surveillance camera in the employee’s bathroom positioned five feet away from and at the same height of the toilet seat. She further states that she used the bathroom at least twice a day. When she discovered the unlawful surveillance equipment and the placement of the monitor in the doctor’s office, she resigned.

Published on: May 31, 2012

Court Discusses Hearsay in Establishing Criminal History

by Stephen Bilkis

On this proceeding, the court argues on the matter that in what extent can a psychiatrist rely on out-of-court materials, such as pre-sentence reports and department of parole records, in compiling a history of sex offenses committed by a man in order to formulate a psychiatric opinion and whether the man has a mental abnormality as that term is defined in the law.

A man was convicted of attempted rape in the first degree of a 13-year-old victim. The decision of the offense is considered established and may not be arguable. The records from the proceeding are acceptable at trial. In addition, the man’s criminal history includes a number of additional convictions. Previously, the man was convicted with rape in the third degree were the victim was a 15 years old. The underlying facts supported by court felony complaint sworn under oath by victim, grand jury decision, presentence report and certificate of conviction. The man was also convicted with rape and sodomy in the first degree when he engaged in forcible sexual intercourse with his 12-year-old daughter. Moreover, the man was convicted with impairing the morals of a minor when he allegedly fondled the 11-year-old victim. Lastly, the man also convicted with attempted assault when he allegedly fondled the eight-year-old victim.

At trial, the complainant presents the testimony of a licensed social worker who compiled the documents settling forth the man’s criminal history. The woman’s testimony established that she collated the documents from various sources and compiled a report used by the office of mental health colleagues in the proceedings. Afterward, the testimony of the complainant’s expert psychiatrist established that he relied upon the same documents, as well as his interview with the man, in formulating his expert opinion.

Published on: May 31, 2012

Defendant Contends Penal Law Unconstitutional

by Stephen Bilkis

The complainants, a prostitute and a patron seek a judgment declaring sections of the Penal Law unconstitutional. The laws prohibit prostitution and patronizing a prostitute.

A New York Criminal Lawyer said the action was commenced and the opponents, the City Mayor and the City Police Commissioner moved to dismiss on the ground that the prostitute and the patron lacked standing. Another opponent, the County District Attorney moved to dismiss on the same ground and also that the complaint failed to state a cause of action. The complaint was dismissed for failure to state a cause of action with leave to re-plead. The complainants filed an amended complaint and all the opponents moved to dismiss on the same grounds alleged by the District Attorney after the first complaint was filed. The complainants filed a cross motion for summary judgment. Before deciding the motions, the Court determined whether any of the prior rulings are LAW OF THE CASE.

The Law of the Case doctrine is a kind of intro-action res judicata or matter that was already settled and cannot be raised again. Within the framework of a single action, it prevents re-litigation of a point already adjudicated in it.

Published on: May 30, 2012

Defendant Claims Plaintiff Recanted Her Statement

by Stephen Bilkis

The Facts:

Defendant, who was then 24 years old, had known the complaining witness, then 20 years old, for several years. Allegedly, on 24 April 1976, at the complaining witness’s home, following a visit with the complainant’s family and defendant’s mother, defendant told the complainant that he wanted to have sex, and upon her refusal, he forced her to engage in intercourse. A New York Criminal Lawyer said the complainant was later taken to a Hospital for examination, which was negative for the presence of semen.

On 28 April 1976, the complaining witness identified defendant to the police, in front of the complaining witness’s home, and defendant was arrested. In statements following the arrest, defendant admitted having had intercourse with the complainant but denied having used force. He claimed that the complainant had been angry over the fact that defendant had been seeing another woman.

Published on: May 30, 2012

Son Sexually Attacks Mother, Mother Accused of Sexual Abuse

by Stephen Bilkis

A woman who was originally from the Dominican Republic had a son whom she left in the Dominican Republic when she migrated to the United States. She obtained permanent residence status when she married an American citizen with whom she had two other children.

A New York Criminal Lawyer said she was then able to send for her son from the Dominican Republic. He first stayed with his father’s relatives in Florida but later on he moved in with his mother at the house she shared with her American husband and their two children.

Sometime on December 31, 2007, the mother, the son and the stepfather attended a party where they all had quite a bit to drink. The son, who was then 14 years old drank rum at that party they attended. When they came home, the stepfather stayed in the living room to watch television.

Published on: May 29, 2012

Defendant Claims Court Lacked Jurisdiction for Order for Protection

by Stephen Bilkis

On this proceeding, a man filed an appeal from a judgment convicting him of burglary in the second degree, criminal contempt in the first degree and second degree, upon his plea of guilty.

The offense happened on the last quarter of 2004 when the man assaulted his former girlfriend on several occasions. A New York Criminal Lawyer said he broke into his girlfriend’s apartment, repeatedly harassed the woman and stalked her in violation of temporary orders of protection. Consequently, the man was charged in two separate accusations with multiple crimes, including burglary in the second degree, attempted assault in the third degree, criminal contempt in the first degree and second degree, aggravated harassment in the second degree, stalking in the fourth degree, and menacing in the second degree. Afterwards, the separate accusations were consolidated. The man also agreed to plead guilty to burglary and criminal contempt. Based on records, in exchange of the man’s claim, the Supreme Court promised him that if he completed the treatment alternatives to street crimes drug program they will leave his plea to burglary in the second degree and sentence him to concurrent terms of five years’ probation for criminal contempt in the first degree and second degree. However, the Supreme Court warned the man that if he failed to complete drug treatment, his plea to burglary in the second degree would stand, and he would be sentenced to a determinate term of seven years of imprisonment and a period of five years of post release supervision for that offense.

The man then acknowledged that he understood the arrangement. The man give up his right to a jury trial, his right to cross- examine witnesses, and his right to testify on his own behalf if he wished to do so. Immediately after the man acknowledged that he was giving up his rights, the Supreme Court briefly addressed the issue of a waiver of the right to appeal. A Brooklyn Criminal Lawyer said that it explained that if the man were tried and convicted, he would have the right to appeal the conviction but he already give up his right. The Supreme Court further asked the man whether he was willing to give up all his rights and any other rights he had and plead guilty and the man answered yes. The man then admitted that he entered unlawfully and remained unlawfully in the victim’s dwelling, that he was aware that she had obtained an order of protection against him, and that he had violated that order of protection.

Published on: May 29, 2012

Court Discusses the Crime of Predatory Sexual Assault

by Stephen Bilkis

The indictment alleges that on May 2, 2011, the man forcibly compelled the complaining witness to perform oral sex upon him. A New York Criminal Lawyer said that according to the indictment, the man then forcibly subjected the woman to anal intercourse. The indictment further alleges that, on May 14, 2011, the man forcibly touched the breasts of complaining witness with his hands and mouth. According to the indictment, the man also forcibly compelled the complainant woman to perform oral sex upon him and then forcibly subjected her to vaginal intercourse.

The man’s motion to inspect the Grand Jury minutes was granted. Upon review of the Grand Jury minutes, questions pertaining to the counts of Predatory Sexual Assault were raised by the court. Following oral argument, the Jury dismissed four of the indictment, each charging Predatory Sexual Assault, as they related to the underlying offenses committed on May 2, 2011. A New York Criminal Lawyer said the man moves for dismissal of the remaining indictment, each charging Predatory Sexual Assault, as they relate to the underlying offenses committed on May 14, 2011, on the following grounds that the remaining counts of Predatory Sexual Assault, as they appear in the indictment, fail to state a crime or offense; the remaining counts of Predatory Sexual Assault cannot be legally amended; the Predatory Sexual Assault statute was enacted to penalize recidivist behavior; and the Jury’s intended use of the Predatory Sexual Assault statute violates man’s due process rights.

The Jury contends that their intended use of the Predatory Sexual Assault statute is appropriate and that the remaining indictments were properly charged to the Grand Jury and correctly worded in the indictment. The man’s motion to dismiss was denied from the bench.

Published on: May 27, 2012

Claimant Brings Action for Unjust Conviction

by Stephen Bilkis

This case is being heard in the Court of Claims in the City of New York. The defendant in the case is the State of New York. The claimant of the case is Amine Baba-Ali. The judge overseeing the case is Melvin L. Schweitzer.

Action

The claimant in this case, Amine Baba-Ali was accused and convicted of sexually abusing his four year old daughter. A New York Criminal Lawyer said the allegations included that he sodomized the girl and raped her. He was imprisoned for 783 days on multiple concurrent sentences for these convictions. He was held in a maximum security prison during this time.

Published on: May 27, 2012

Defendant Seeks to Lower his Risk Assessment Level

by Stephen Bilkis

This case is being heard in the Second Department Appellate Division of the Supreme Court of the State of New York. The appellant of the case is Robert Fareira. The appellant is represented by Steven Banks, New York, New York, with Joanne Legano Ross for counsel. The respondent of the case is the People of the State of New York. A New York Criminal Lawyer said the respondent is represented by the Brooklyn, New York District Attorney, Charles J. Hynes with Leonard Joblove and Morgan J. Dennehy for counsel and Leah Rabinowitz on the brief for the case.

Appeal

The appellant, Robert Fareira, is appealing an order that was made by the Kings County Supreme Court on the 29th of April in the year 2009. The order designated the defendant as a level three sex offender according to the Correction Law, article 6-C.

Published on: May 26, 2012

Court Discusses Sex Offender Registration Act

by Stephen Bilkis

The respondent for this case is the People of the State of New York. The appellant in the case is Neil Pietarniello. The case is being heard in the Second Department of the Supreme Court of the State of New York in the Appellate Division.

Appeal

A New York Criminal Lawyer said this is an appeal from the defendant concerning a previous order from the Kings County Supreme Court. The judge from the previous case was Brennan. The case involved a hearing to determine the sex offender risk level of the defender. The appellant was designated as a level 3 sex offender based on Correction Law article 6-C.