Criminal Procedure

Published on: February 17, 2012

Court Rules on Sex Crime with Minor Boys

by Stephen Bilkis

Edgar Bagarozy was convicted of sex crimes that included two counts of second degree sodomy for four instances of improper sexual contact with three young boys. Mr. Bagarozy was sentenced to two consecutive terms of 3 ½ to 7 years. Each victim testified that he had allowed Mr. Bagarozy to engage in oral sodomy in exchange for a trip to the movies or an amusement park.

Charges involving one of the victims, identified as Dennis M., were dismissed after the boy recanted. He claimed that he had falsely accused Mr. Bagarozy after being intimidated by the police. In the case of the two other victims, Angel J. and Manny O., Mr. Bagarozy was convicted of the sodomy charges.

The defendant opted not to testify at trial, despite the fact that the prosecution focused on his sexual preference and submitted a large volume of evidence attesting to his previous sexual acts involving young boys. Specifically, evidence was introduced regarding Mr. Bagarozy’s affiliation with NAMBLA (North American Man-Boy Love Association) as proof of his intent to commit sodomy. Following his conviction, Mr. Bagarozy’s criminal defense lawyer filed an appeal with the Supreme Court Appellate Division, First Department.

Published on: February 17, 2012

Court Rules on Sex Crimes Case

by Stephen Bilkis

Michael Hernandez was found guilt of six counts of first degree sodomy, one count of attempted first degree sodomy, two counts of second degree sodomy and one count of first degree sexual abuse. Following his conviction, the Board of Examiners of Sex Offenders recommended designating Mr. Hernandez as a risk level three sexually violent offender upon his release. Mr. Hernandez’s criminal defense lawyer requested a risk assessment hearing to determine whether he should be assigned to risk level two based on the evidence.

A New York Criminal Lawyer said that according to trial records, Mr. Hernandez was convicted on sex crimes charges for committing improper sexual acts with five boys, aged 11 to 15. Apparently, Mr. Hernandez had convinced the boys to run away from home and go to a shack in the woods near Pelham Bay, where the sexual offenses occurred. At the time the sexual acts were committed, Mr. Hernandez was 19. He received a sentence of 8 1/3 to 25 years with a release date of November 7, 2011.

On October 23, 2003, the Board of Examiners of Sex Offenders submitted a risk assessment which recommended classifying Mr. Hernandez as a sexually violent offender based on score which was calculated by assigning a certain number of points for specific details of his crimes. Mr. Hernandez’s score totaled 165 points and was broken down accordingly: 10 points for use of force; 25 points for sexual intercourse and/or aggravated sexual abuse with the victim; 30 points for more than three victims; 20 points for a continuing act of sexual misconduct; 20 points for the victims being under age 16; 10 points for Mr. Hernandez being under age 20 at the time the crimes occurred; 30 points for a prior violent felony or misdemeanor sex crime conviction; 10 points for the prior crime occurring less than three years before the most recent acts; and 10 points for unsatisfactory conduct while incarcerated.

Published on: February 17, 2012

Court Rules of Complex Drug Possession Case

by Stephen Bilkis

According to a New York Drug Crime Lawyer , a 33-year old man was indicted by a jury and charged with marijua posssession. Court records showed that the defendant was a second felony offender but not a violent offender. During the course of plea negotiations, the defendant was offered by the State a plea to a B felony in satisfaction of the indictment with a minimum sentence of four and a half years to nine years in state prison. Prior to defendant’s plea, the New York State Legislature passed the Drug Law Reform Act, which was signed into law in 2004.

The People took the plea with a minimum sentence but the sole issue in contention is, what is the minimum state prison sentence now allowed by law given the passage of the new law.

A New York Drug Possession Lawyer said that the defense attorney argued that the newly enacted DLRA should be applied retroactively and authorized not only a plea to a B felony reduction from an A-I felony but also the appropriate sentence should be a three and a half year determinate prison term with postrelease supervision set by the court at a determinate time of the minimum of one and a half years to a maximum of three years.

Published on: February 16, 2012

Court Rules in Sex Crime Case

by Stephen Bilkis

On September 4, 2009, Jelan Miller was convicted of one count each of first degree rape, third degree rape, attempted criminal sexual act in the first degree and attempted criminal sexual act in the third degree. Mr. Miller appealed his conviction to the New York State Supreme Court Appellate, Second Division based on a claim of ineffective assistance of counsel.

According to trial records, Mr. Miller was charged with raping a 16-year-old girl who frequently baby sat for him and his girlfriend in their home. The girl claimed that Mr. Miller raped her one evening when she stayed overnight at the residence.

A New York Criminal Lawyer said that in reviewing Mr. Miller’s case, the appellate court found that his criminal defense attorney failed to prevent prejudicial evidence from being admitted at trial. Specifically, the girl’s mother testified that two of Mr. Miller’s girlfriend’s nieces were often present in the home and that their personalities and behavior changed seemingly overnight. One girl, she stated, became mean and angry while the other became very promiscuous. These statements had the effect of implying that Mr. Miller had inappropriate sexual contact with the two girls, suggesting to the jury that he had a predisposition for committing sexual acts with minors. Mr. Miller’s attorney objected to the statements on the grounds that they were hearsay but never raised any objection regarding their prejudicial nature. The defense also never requested the judge to instruct the jury to consider the information within a limited scope.

Published on: February 16, 2012

Court Rules on DWI matter

by Stephen Bilkis

A driver was involved in a one-car accident in Albany County. The car he was driving left the highway and struck a tree. As the result of investigation, officers of the defendant Town Police Department went to the hospital to issue the plaintiff driver his appearance tickets charging him of DWI (driving while intoxicated), operating an unregistered vehicle and driving at a speed not reasonable and prudent. A New York DWI Lawyer said that a blood sample was taken from the plaintiff to determine his blood alcohol content, which later proved to be negative. Consequently, the charges against the driver were dismissed. Thereafter, the driver commenced a legal action against the defendant Town, the police department and the Police Officer for false imprisonment and malicious prosecution. The defendants answered and moved for dismissal of the charges. In opposition to the motions, the driver conceded that his claim for false imprisonment did not lie, but contended that his malicious prosecution claim was viable because the defendants lacked probable cause to initiate the criminal proceeding which was terminated in his favor. The Supreme Court granted the defendants’ motions and an appeal proceeded.

A New York DWI Lawyer explained that elements of an action for malicious prosecution are initiation of a proceeding without probable cause. Records show that the defendants submitted their testimony and affidavits of the police officers who were dispatched to the accident scene. The testimony and affidavits claim that the driver was observed to be somewhat incoherent, and that they detected a faint odor of alcohol emanating from him. When they asked the driver whether he had been drinking, the driver responded that he did not drink much. The police officers further alleged that the driver’s automobile had failed to negotiate a curve at the accident site and that the road surface was dry and free of any defects where the vehicle had left the road. Based upon the facts, the police officers asserted that there existed probable cause to issue the appearance tickets in question.

In opposition to the motion, the driver asserted that he had consumed no alcoholic beverages on the day of the accident, a fact confirmed by the results of his blood alcohol analysis, and that the accident resulted when he leaned over to pick up a cigarette that he had dropped. As to his alleged conversation with the police concerning his alcohol consumption, the driver alleged that he had no recollection of events from the time of the collision until he regained consciousness in the hospital two months later. A Nassau County Criminal Lawyer said that it appears that there are questions of fact as to whether probable cause existed for the issuance of the appearance ticket for driving while intoxicated. Notably, the driver’s alleged admission that he had not drunk much on the day of the accident was a matter solely within the knowledge of the moving parties, given the driver’s lack of recollection of events following the accident, and should not form the basis for dismissal.

Published on: February 16, 2012

Defendant Charged with Multiple Sex Offenses

by Stephen Bilkis

On October 16, 1997, a male identified only as C.B. made a videotaped confession to a Bronx Assistant District Attorney following his arrest. During the confession, C.B. discussed numerous criminal offenses and described on at least 11 different occasions on which he had entered private residences unlawfully and in some cases, masturbated onto a sleeping female victim. He also claims to be an exhibitionist and states that he needs help because he has a problem or illness that made him repeatedly commit the sex crimes.

C.B.’s criminal defense attorney subsequently filed a motion with the Bronx County Supreme Court to exclude statements made in the confession that related to the charges he was arrested on. According to a New York Criminal Lawyer, the motion also included a request to exclude testimony from the victims and the minutes of the Grand Jury proceedings. Specifically, defense counsel argued that the victim should be precluded from testifying at trial since the statements offered would be irrelevant; that the videotaped confession should be excluded since it contains evidence of unrelated and uncharged crimes; that the videotape itself was prejudicial; and that C.B. was not competent to testify as to his own mental capacity.

An Article 10 hearing was scheduled on April 9, 2009, to determine whether the tape confession should be admitted. Defense counsel also argued that the tape’s admission would violate C.B.’s constitutional rights and that Grand Jury testimony should be precluded since it was never referenced in the charges or plea allocution and should not be disclosed without a court order.

Published on: February 16, 2012

Court Rules in Sex Crime Case

by Stephen Bilkis

On December 6, 2007, Pasqual Reyes was convicted of one count each of second degree burglary and endangering the welfare of a child as well as four counts of third degree sexual abuse. At trial, the jury sent the judge a note questioning how the age of the victim impacted intent with regard to the burglary charge. The court essentially stated that it would advise the jury that the age of the victim was irrelevant. Mr. Reyes’ criminal defense attorney objected and asked the court to reread its original instruction. Defense argued that age of the victim was a factor in determining intent to commit burglary. The court reaffirmed its stance and delivered a more specific instruction to the jury. The jury found Mr. Reyes guilty of the above-mentioned charges and his defense attorney appealed to the Supreme Court Appellate Division, First Department.

According to a New York Criminal Lawyer, the appellate court was asked to consider whether the court should have reread the original instruction as requested by defense counsel. Defense claimed that the revised instruction the trial judge provided was incorrect and prejudicially misleading. With regard to the defense’s argument, the court held that it was appropriate for the trial judge to have delivered more specific instructions to the jury, rather than the readback of the charge that was originally requested since the jury clearly did not understand the information given to them initially.

Defense counsel also argued that the third degree sexual abuse charge did not satisfy the intent element of the burglary charge. The appellate court again reiterated that the trial judge charged the jury correctly in stating that if they believed that Mr. Reyes intentionally entered the building in order to have sexual contact with a minor then the victim’s actual age is irrelevant. The court also cited New York law, which holds that a person is responsible for the age of any individual with whom they have sexual contact, whether they know the other person’s age or the person represents their age as being different from what it actually is.

Published on: February 16, 2012

Admissibility of Evidence Challenged in Sex Crimes Case

by Stephen Bilkis

Francis McCann was charged with one count each of first degree sodomy, first degree robbery, first degree sexual abuse and two counts of criminal weapon possession in the fourth degree. The crimes allegedly occurred on June 13, 1976 but Mr. McCann was not indicted until January 24, 1980.

A New York Sex Crime Lawyer explained that Mr. McCann’s criminal trial for the robbery and sex crimes charges began in September 1980. The proceeding ended in a mistrial due to a hung jury. The primary piece of evidence presented by the prosecution was the victim’s identification of Mr. McCann.

At the second trial, Mr. McCann hired a new criminal defense lawyer. His attorney filed a request with the prosecution to produce certain evidence based on a police reported prepared by Detective Stanley E. Carpenter, who worked in the Queens Sex Crimes Unit at the time. According to the detective’s report, the person who committed the robbery and sex offenses cut his hand during a struggle. The report stated that there were blood stains around the area where the attack occurred as well as on the victim’s pants.

Published on: February 16, 2012

Court Decides Drug Case where Weapons were Involved

by Stephen Bilkis

A 44-year old man was convicted, following a jury trial, of various crimes stemming from a shootout during which two innocent bystanders were injured. The defendant thereafter was sentenced as a second felony offender to an aggregate term of 30 years in prison with five years of post-release supervision. The defendant appealed his conviction.

A New York Drug Crime Lawyer explained that prior to trial, evidence was introduced showing that the defendant has been convicted with drug crimes, based on guilty pleas, and the other man involved in the shoot-out has been convicted with crack cocaine possession, with the intent to sell. Following the shootout, the other man involved in the shootout was again found in possession of crack cocaine, leading to several drug-related crimes.

The prosecution argued that the prior conviction was probative of the defendant’s intent to act in concert with the other man to constructively possess and sell the cocaine; the State also sought to introduce evidence of the defendant’s alleged gang affiliation and other prior drug dealing and gun possession charges as additional evidence of intent and motive.

Published on: February 15, 2012

Court Rules on Question regarding Statutory Sentencing Guidelines

by Stephen Bilkis

David Felix was charged with robbery in the second degree as an armed and violent Class C felony, according to a New York Criminal Lawyer. He pled guilty to a Class D violent felony offense in exchange for a prison sentence of one to three years. At that time, the court agreed to consider an application for a less sentence based on mitigating circumstances. The court later found that there was insufficient mitigating evidence to support a shorter term than he had already received. Mr. Felix then challenged the court’s decision, alleging a violation of his due process rights. The court rejected his claim. At the sentencing hearing, Mr. Felix’s criminal defense attorney filed another application for a shorter sentence, which was also denied.

The case was then referred to the Supreme Court Appellate Division to address Mr. Felix’s constitutional claim. After reviewing New York Penal Law, the court determined that the prison term he received was appropriate and that the lower acted within the boundaries of its discretion in handing down the sentence. Accordingly, his plea arrangement and sentence were affirmed.

In a concurring opinion, Justice Lupiano noted that the statute in question, Penal Law Section 70.02., was in fact constitutional. Furthermore, the judge noted that in pleading guilty to the second degree attempted robbery charge, Mr. Felix was fully aware of the sentencing restrictions imposed by law.