Sex Crimes

Published on: June 23, 2012

Court Looks at Intent in Criminal Assault Case

by Stephen Bilkis

Sometimes, the cases that reach the Supreme Court on appeal represent a question of law that is similar among several cases. When this happens, the cases are grouped into one with several cases included. One such composite case involved a defendant who was indicted for attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree. A New York Criminal Lawyer said he was arrested for shooting a man with whom he had gotten into a disagreement. They had known each other for many years before the disagreement turned violent. The only witness to the altercation was the victim himself. The victim had originally told the police that he did not know who had shot him. It was not until later that he identified his acquaintance as the perpetrator of the assault. The defense attorney for the defendant attempted to have expert testimony presented in court on the inadequacies of eyewitness identifications. The trial court denied his request.

The judge instructed the jury that the defendant could only be convicted of the charge of first degree assault if he caused serious physical injury to the man by means of a deadly weapon with the intent to cause serious physical injury. They were charged that to convict him of second degree weapon possession, they had to prove that the defendant possessed the loaded gun, that he possessed it knowingly, that the gun was operable, and that he had the intent to use it with unlawful intent against the man who was shot. The jury acquitted the defendant of attempted murder and second degree possession of a weapon. He was convicted of first degree assault. A New York Criminal Lawyer said the defense attorney objected to the verdict in court because he maintains that the fact that the defendant was acquitted on the weapon possession count that he could not be convicted for the assault with that weapon.

The trial court rejected the argument of the defense because they claimed that it was not contradictory for the defendant to have possessed the weapon without an intent to use it illegally. He had possession of the weapon without intent to assault anyone earlier in the day before he decided to use it to shoot the victim. The Appellate court agreed on the appeal and upheld the conviction.

Published on: June 22, 2012

Court Hears Motion To Supress Search Warrant

by Stephen Bilkis

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.

Published on: June 21, 2012

Court Determines if Jury Instructions Were Misleading

by Stephen Bilkis

In the early 1970’s the rape law in New York required that the complaint of the victim had to be corroborated by a third person in order to obtain a conviction. A New York Sex Crimes Lawyer said this seems archaic these days and made it almost impossible for a rape victim to obtain justice against her attacker. In one case of a woman who was walking home from the bus stop late at night, a man with a knife followed her and forced her into an abandoned stairwell. He told her that he was going to rape her and forced her to undress while holding the knife to her throat and face. Once she was disrobed, he held his cigarette lighter up to her lady parts. She felt the heat from the lighter and fought to get away. He threatened her again at which time she stopped resisting for fear that he would cut her.

A neighbor in the area called the police because he saw the woman get shoved into the stairwell and reported that a robbery was in progress at that location. A police car with two officers responded to the area. The officers found the man still raping the woman. They arrested him and collected the cigarette lighter and the knife as evidence. They also noticed that the woman had a cut on her cheek from the knife, just below her right eye. The woman was transported to the hospital where a doctor performed an examination. He noticed that the victim had a cut on her chin as well and that there were physical signs that the rape was culminated.

At the trial of the man, the judge did not inform the jury that corroboration was required to convict on the crime of rape. A New York Sex Crimes Lawyer said the defense filed a motion to overturn the guilty verdict that the man received based on that fact. The defense claimed that it was a fatal error to not instruct the jury that corroboration was necessary. Their contention being that since no one saw whether the woman agreed to have sex with him or not, minus corroboration, the jury would have been unable to convict him of rape.

Published on: June 21, 2012

Potential Juror Misconduct Reviewed In Sex Crimes Case

by Stephen Bilkis

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.

Published on: June 20, 2012

Court Discusses Sex Offender Registration Act

by Stephen Bilkis

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.

Published on: June 19, 2012

Defendant Contends Violation of Drug Reform Act

by Stephen Bilkis

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.

Published on: June 19, 2012

Defendant Claims He Did Not Play an Active Role in Drug Transaction

by Stephen Bilkis

A team of police officers conducted a buy and bust narcotics operation. The undercover officer carried bills which had been photostatted and drove to the location where twelve people were standing near the area. The officer called out from his automobile asking if anyone had dimes. A New York Criminal Lawyer said based on records, the word dimes mean a $10.00 bag of heroin. The man then came over to the auto and asked the officer what he wanted. The officer then replied again the word dimes. Then, another man standing a few feet behind the first man asked the officer if he wanted Santa Claus. The officer being unfamiliar with the term ignored the other man. The officer again told the first man that he wanted dimes. The man asked how many and the officer replied to give him two. The man called over his shoulder the word duayduay and another man then walked to a tree about fifteen feet from the auto. He bent down, reached among the cobblestones at the base of the tree and removed some glassine envelopes. The first man told the officer to give him the money and he must give him one extra dollar. The officer gave the first man a ten, a five and five singles. The man then counted it and demanded the officer for another dollar. The officer gave him a five dollar bill and the man returned four singles. As the other man was returning to the car, another person walked over to the tree and the man yelled at him to get away. The other man then walked to the car and handed the officer the two glassine envelopes. The other man told the officer that he should get out of the area fast because it’s hot. The officer then left the area and made a transmission to his back-up team to arrest the two men. The police then recovered narcotics from the cobblestones at the base of the tree. The other man was found to have twenty dollars as recorded bills in his possession while only a single dollar bill was found on the first man.

The issue brought into the court was the argument whether the first man was an agent of the purchaser and whether the trial court’s charge on the defense of agency was damaging to the first man so as to require reversal of his conviction for criminal sale of a controlled substance in the third degree. A New York Criminal Lawyer said the court then concluded that the first man was not an agent of the purchaser but rather played an active role as seller of the contraband.

As the court admitted the question of the first man’s status in the illegal transaction was a proper question for the jury and one in which they accurately determined that the first man was a seller of drugs. Based on records, it is important to remember that when the undercover officer drove to the prearranged locale, the man was not the only individual on the street, but was part of a group of twelve men. After the undercover officer asked of the congregation if anyone had dimes, the man then voluntarily emerged from the crowd and inquired as to what the officer desired and in what quantity. The second man approached and handed the narcotics directly to the officer. A few minutes later, the first and second man was arrested at which the second man had in his possession the twenty dollars of marked money while the first man was in possession of the additional dollar.

Published on: June 19, 2012

Court Decides What to Do with Money Uncovered During Crime

by Stephen Bilkis

On March 1982, a police officer assisted in the arrest of a man after a search of his rented car. The search was allegedly based on probable cause. Drug paraphernalia amounting to $8,605 was found on the floor behind the driver’s seat and several suitcases of marijuana were also found in the trunk of the car. The police officer states that the man confessed that he was a runner from Florida who brought marijuana to the New York City area for sale and returned to Florida with the proceeds of the sales. A New York Sex Crimes Lawyer said the man was arrested on felony and misdemeanor charges but was permitted to plead guilty to disorderly conduct and was sentenced to a conditional discharge.

The property clerk contends that the $8,605 is the proceeds of or derived from the sale of a controlled substance and is therefore subject to forfeiture pursuant to administrative code. The code provides that where moneys or property have been unlawfully obtained or stolen or are the proceeds of crime or derived through crime or derived through the use or sale of property prohibited by law from being held, used or sold, a person who so obtained, received or derived any such moneys or property, or who so used, employed, sold or held any such moneys or property or suffered the same to be used, employed, sold or held, or who was a participant or accomplice in any such act, or a person who derives his claim in any manner from or through any such person, shall not be consider to be the lawful claimant entitled to any such moneys or property.

The property clerk also argues that the assignee of the man cannot possibly meet his burden under administrative code and that the money should therefore be declared to be forfeited. A New York Sex Crimes Lawyer said the subdivision states that a claimant of property, who derives his title by assignment, must establish that his assignor had a lawful title in such money and lawfully obtained possession thereof and that such money was held and used in a lawful manner.

Published on: June 18, 2012

Court Determines if Unlawful Surveillnce is a Sex Crime

by Stephen Bilkis

A 55 year old man, after violating a criminal law, has been placed under the Strict and Intensive Supervision and Treatment (SIST) under a sex offender civil management proceeding. Subsequently, the State filed for a petition to revoke the respondent SIST’s placement and requested the court for the respondent to be transferred under a Secure Treatment Facility under Article 10 of the Mental Health Law. The court denied the petition.

A New York Criminal Lawyer said the respondent acknowledged that he was a drug user from 1980 up to 1993. He admitted having marijuana possession and used it during his teenage years. His addiction relating to drug crime led him to commit several offences. In 1994, the court has found him guilty of Attempted Rape in the First Degree, Sexual Abuse in the First Degree and Burglary in the First Degree for entering an apartment of a lady and while holding a knife, placed her hand on his penis. Prior to this incident, he was a known exhibitionist masturbating in public places while his penis was partially exposed to public view. He admitted that he suffered from a Mental Health Abnormality thus the State entered an agreement for him to be placed and monitored under the SIST.

On August 11, 2010, the respondent placed his cellphone camera under the skirt of a woman in Union Square Park with the intention of photographing the victim. A New York Criminal Lawyer said the victim upon its discovery threw the cell phone and scuffled with the respondent. In course of the incident, the victim suffered physical injuries. In addition to this incident, a parole officer mandated to supervise him during the program testified that the respondent violated the terms of the agreement by masturbating in a public place. The respondent admitted to masturbating inside the stall of a public restroom and a library.

Published on: June 17, 2012

Defendant Takes Issue of Reclassification of Drug Offense to a Felony

by Stephen Bilkis

A man was charged in an indictment of two counts of criminal heroin possession and sale. The first count was due to drug possession and sale committed on October 19, 1973 and the second count was due to heroin possession and sale committed on October 23, 1973.

On September 1, 1973, the legislature of New York passed a law which classified criminal heroin possession and sale as a A-III felony. Being classified as A-III felony, a conviction would be punishable with an indeterminate prison sentence of a minimum of one to eight years (for first time offenders) and a maximum of life imprisonment.

A New York Criminal Lawyer said the accused here seeks a dismissal of the information and the indictment against him on the grounds that the indictment for criminal heroin sale and possession violates his rights to due process, equal protection, and the right against cruel and unusual punishment.