Rape Category Archives — Page 4 of 10 — New York Criminal Lawyer Blog Published by DWI & Criminal Defense Attorneys

Published on: August 31, 2012

Court Rules on Juror Misconduct

by Stephen Bilkis

When jurors are chosen to sit on a trial jury, they are required to take the position seriously. The responsibility that is inherent to the position of a juror in a trial is heady to say the least. That is especially true when the person is called to put their lives on hold while they sit for weeks on a highly publicized trial jury. A New York Criminal Lawyer said that it can be almost impossible for anyone to shut themselves off from any information that relates to a trial that is in the news and on the television and radio every time that they turn one on. It is incumbent upon the court to ensure that the juror is aware of their responsibility and to take action against those jurors who violate the standards that are set.

Because the court realizes that it is sometimes impossible to prevent a juror from being exposed to some type of information about a case that is highly publicized, it is often at the discretion of the court to determine if that juror can put aside the information that they have been exposed to outside of the courtroom in order to make a decision on the case based solely on the information that is presented in the court. In most cases, a court simply asks the juror and accepts the juror’s response. However, there are times when that is not possible, for instance it may not be possible if the juror has been discovered to have discussed the case outside of the jury room with an uninvolved acquaintance. In most cases, when a juror is found to have participated in that type of misconduct, they will be dismissed from the jury and an alternate will take their place.

In one case that was a highly publicized rape and robbery case from 1973, the juror went to dinner with some friends while she was sitting on the jury. While at dinner, they were joined by some acquaintances of another one of her friends. In this group was a defense attorney. Over dinner, the woman told her tablemates that she was on the jury and that she had been instructed not to discuss the case. She stated that she had made up her mind about the man’s guilt, but that she would listen to the viewpoints of the other jurors before putting in her vote. Later in the day, she found out that the woman was a defense attorney and pointed asked her if she was familiar with the accuracy of DNA evidence as well as a few other questions. She also stated that she had looked on the computer to find out what the defense attorney’s credentials were. All of these statements are violations of the code of conduct for jurors. The defense attorney whom the woman had spoken to worked for the legal aid society.

Published on: August 23, 2012

Sex Crimes Defendant Also has Immigration Issue

by Stephen Bilkis

The people of the state of New York are the plaintiffs in this case being heard in the Supreme Court of Suffolk County.The defendant has moved to have his conviction for the Class E felony of Rape in the third degree vacated. The basis for his argument for this motion is that he lacked effective assistance of counsel.

Case Background

The defendant illegally entered the United States with his father in the year 1991 when he was just sixteen years old. The defendant never attempted to become a citizen of the United States while he was living here and before he was prosecuted on the charges of rape in the third degree. He was not eligible for any type of program or amnesty after his illegal entry into the country.

Published on: August 20, 2012

Plaintiff Seeks Damages Against Landlord for Assault

by Stephen Bilkis

This involves a case where the Supreme Court Appellate division held that conceivability is not equivalent to foreseebility. The Court herein granted defendant’s motion for summary judgment dismissing the complaint.

Plaintiff was a tenant in a building located at 584 Academy Street in Manhattan, owned by defendant holding company and managed by defendant development company. In the early afternoon of February 26, 2002, plaintiff entered the building through the lone entrance available to the tenants. A man whom plaintiff did not recognize entered the building immediately after her. The man walked ahead of plaintiff up a staircase, which plaintiff was using to reach her unit on the second floor. A New York Criminal Lawyer said that as plaintiff opened the door to her apartment, the man, who had continued up the staircase when plaintiff walked from the staircase to her unit, ran down the staircase and pushed plaintiff into the apartment. The man then sexually assaulted plaintiff at gunpoint.

Plaintiff commenced this action to recover damages for personal injuries, claiming that defendants failed to provide adequate security for the building. Specifically, plaintiff’s theory of liability is that defendants failed to maintain a working lock on the door to the tenants’ entrance, which failure allowed the assailant to gain entry to the building and assault plaintiff.

Published on: August 16, 2012

Court Looks at Elements of Sexual Abuse

by Stephen Bilkis

The People of the State of New York are the plaintiffs in a case against the defendant Stan Miller. This case is being heard in front of the Criminal Court of the City of New York in Kings County. A New York Criminal Lawyer said the defendant in the case has been charged with attempted sexual abuse in the second degree, attempted sexual assault in the third degree, unlawful imprisonment in the second degree, harassment in the second degree, and endangering the welfare of a child. The defendant has moved to have the charges against him dismissed.

Case Facts

The complaint in this case comes from a thirteen year old girl. The defendant is a teacher at the child’s school. On the day that the incident occurred the defendant walked the child to his home. The child wanted to leave the defendant’s home and the defendant proceeded to block the doorway and would not let her leave. The child states that the defendant asked her for a kiss and she said no. She says that he moved his face into close proximity of hers and tried to kiss her. These actions caused the child to become alarmed and annoyed.

Published on: August 15, 2012

Court Hears Motion for Dismissal

by Stephen Bilkis

This is a matter being heard in the Supreme Court of the State of New York, Appellate Division, and Fourth Judicial Department. A New York Criminal Lawyer said the case deals with the State of New York as the petitioner and respondent and Nushawn Williams, who is also known as Shyteek Johnson, as the respondent and appellant.

The respondent and appellant, Shyteek Johnson is appealing a decision made in the Supreme Court of Chautauqua County that denied the motion made by the respondent/appellant to dismiss the proceeding.

Case Background

Published on: August 14, 2012

Court Discusses Waiver of Right to Appeal

by Stephen Bilkis

This is a case being heard before the Supreme Court, Appellant Division, Second Department of the State of New York. The respondent in this matter is the People of the State of New York. Jay Jomar Bradshaw is the appellant of the case.

The defendant is appealing a judgment that was made in the Kings County Supreme Court. A New York Criminal Lawyer said the judgment convicted him of rape in the first degree after he pleaded guilty to the crime. The appeal will review the denial of the charges after a hearing for suppression of identification.

Case Background

Published on: August 7, 2012

Defendant Charged with Third Degree Rape

by Stephen Bilkis

Incidents of rape and sexual assault cases involve many different laws. Each case is reviewed in relationship to how it addresses each element of each law. A New York Criminal Lawyer said the most appropriate law or multiple laws are then charged by the prosecution. In some case, a charge is reduced to a lesser included offense because the jury or prosecutor decides that the lesser included offense if more appropriate to the actions of the charged offender. One case of this type occurred in 2008.

On May 21, 2008, a man was charged with rape. He was convicted after a jury trial on May 28, 2008 of third-degree rape, which is detailed under New York Penal Law § 130.25(3). This charge was determined by how the victim expressed her lack of consent to the sexual assault. This victim apparently never stated the actual term “no,” but rather testified that she had been crying the entire time and stating that she just wanted to go home. The court concluded that any reasonable person observing this situation would conclude that the victim was not consenting to the act. The defense maintained that he did not consider her actions to be a refusal because she never actually stated that she did not want to have sex with him. The court evaluated the totality of the evidence which included the fact that this was his second or third offense of sexual assault.

They also reviewed the fact that the offender forced the woman into his apartment against her will and used threats of physical injury to prevent her from leaving. The court determined that when viewed in their entirety, the circumstances surrounding this assault clearly contained all of the necessary elements to be considered a rape. Because of this, the offender’s request to have his conviction overturned was denied.

Published on: July 29, 2012

Defense Contends Charge of Predatory Sexual Assault Cannot be Upheld

by Stephen Bilkis

In New York, there are many different levels of sex crime offenders. Often the difference between the crimes are reduced to one or two words that are found in the different laws. In one case that occurred on May 2, 2011 and on May 14, 2011, the same offender was involved in both cases. On May 2, 2011, he was charged with sodomizing a young woman forcibly and against her will by forcing her to commit oral sex on him and then forced anal sex on her (rape). On May 14, 2011, before he could be arrested on the first offense, he assaulted another woman. During this assault, he forcibly fondled the woman’s breasts and then raped her vaginally.

He was charged with Predatory Sexual Assault in both cases. However, his indictment passed down by the Grand Jury, only charged Predatory Sexual Assault in the case of the victim on May 14, 2011 and did not proceed on the charges of Predatory Sexual Assault in the case of the victim who was assaulted on May 2, 2011. The reason for this action, was that the charge of Predatory Sexual Assault requires that the action must have been taken on at least one prior occasion. In this case, the court determined that the more serious offense of Predatory Sexual Assault would only apply to the second offense with the first offense used to support the charge on the second victim. Predatory Sexual Assault is a more serious violation that is used to get serial sexual offenders off the streets longer than in the case of one time isolated incidents.

The defendant made a motion to the court to dismiss the charges in their entirety. He contends that since both cases were indicted at the same time, and the first offense was not indicted at all, that there is no precedent case to base the Predatory Sexual Assault charges on in the second offense. The prosecution contends that the Grand Jury heard the testimony in its entirety and determined that the indictment was prepared correctly. There is no wording in the legal statute that provides that the precedent case for Predatory Sexual Assault cannot be submitted at the same proceeding as the case that charges Predatory Sexual Assault. The defense does not agree.

Published on: July 22, 2012

Defendant Petitions Review of Case Under DLRA

by Stephen Bilkis

New York provides that criminal offenders who have been convicted of certain drug possession crimes and related offenses have the ability to petition the court to vacate their indeterminate sentences and impose a determinate sentence. Prior to 2009, indeterminate sentences for drug crimes and other offenses were common. The concept behind the indeterminate sentence was that it allowed the court and correctional system to work together to customize a fair sentence for each offender. However, it did not take long to realize that customization could also be a synonym for prejudicial sentencing. The Drug Law Reform Act of 2009 was placed into effect to eliminate the subjective atmosphere created by the process of indeterminate sentences. Indeterminate sentences often meant that the time that one offender served was completely different from the sentence that was served by a person who committed the same crime, often a co-defendant of the same crime. The unjust diversity that befell the victims of indeterminate sentencing was the target of the Drug Law Reform Act of 2009.

Under the DLRA a person who was assigned an indeterminate sentence prior to 2009 could appeal to have their sentence vacated and a new one imposed. In order to qualify for the resentencing, an offender must meet certain requirements. They must not have been convicted of certain violent felonies within ten years of the time that they file their requests. There are also other requirements that are necessary for a person to meet before they can be resentenced.

One inmate who petitioned for a review of his sentencing under the DLRA of 2009, was incarcerated based on his conviction on November 5, 2004 for the criminal sale of a controlled substance in the third degree. The criminal sale of a controlled substance in the third degree is a class B drug felony in the state of New York. One of the requirements for resentencing under the DLRA is that the offender is an addict and needs treatment for a drug addiction rather than incarceration. This offender contended that he was not a drug dealer at all, but that he was actually an addict who was dealing to support his own habit. He requested resentencing under the DLRA.

Published on: July 21, 2012

Defendant Claims Hypnosis Made Him Commit Crime

by Stephen Bilkis

The Facts:

On 27 March 1982, defendant, while driving a large, white, four-door car with a black vinyl roof, offered the complainant a ride. She accepted, initially intending to be taken to a nearby bus stop, but thereafter accepting defendant’s offer to take her a few blocks further. The complainant described the defendant as a man of medium build, medium to fair-skinned, scruffy or unshaven, and with blondish hair and blue eyes; that defendant wore a blue gas station uniform, had greasy hands and fingernails and smelled of liquor. As they drove, defendant told the complainant that he worked at an Exxon station in Elmont and that he had attended, but had not graduated from, Carey and Van Buren High School; and that he was divorced and had two children, a seven-year-old son and a two-year-old daughter. The complainant noticed a baby seat in the backseat of the car. Thereafter, defendant drove into an empty parking lot where he sodomized the complainant at knifepoint (sex crimes). The entire incident lasted approximately 35 to 40 minutes. After she was released, the complainant called her aunt and uncle, who notified the police.

Consequently, defendant was arrested approximately three months later when observed by the police in his girlfriend’s white, four-door Ford Torino with a black vinyl roof and a baby seat in the back. At that time, defendant had a moustache and was wearing a blue shirt with an Exxon patch. After waiving his Miranda rights, defendant stated that he worked at an Exxon station in West Hempstead, that he lived in Floral Park, that he had worked on the day of the crime and that on his usual route to and from work he drove by the intersection of Plainfield Road and Jericho Turnpike where the complainant had been picked up. Defendant also told the police that he had attended, but not graduated from, Carey and Van Buren High School and that he was divorced and had two children, a son and a daughter. On the day of defendant’s arrest, the complainant identified the defendant’s voice and also identified him in a lineup, notwithstanding that she had never described her attacker as wearing a moustache.