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On appeal, the appellant contends that the evidence was legally insufficient


In a juvenile delinquency proceeding, the appeal is from an order of disposition of the County Family Court which adjudged her to be a juvenile delinquent and placed her in the custody of the New York State Office of Children and Family Services for a period of 12 months with credit for time spent in detention.

The Criminal Court found that the appellant, who, at the club where she worked as a dancer, allegedly agreed to perform oral sex on an undercover police officer, committed acts which, if committed by an adult, would have constituted the crime of prostitution.

On appeal, the appellant contends that the evidence was legally insufficient to support the fact-finding and that the fact-finding is against the weight of the evidence. The evidence supporting a fact-finding in a juvenile delinquency proceeding is legally sufficient if, viewing that evidence in the light most favorable to the presentment agency, any rational trier of fact could have found the appellant’s commission of all the elements of the charged crimes beyond a reasonable doubt. Here, the evidence was legally sufficient to establish the elements of prostitution.

The officer testified that he told the appellant, in effect, that he wanted the appellant to engage in oral sex with him and that he had $100. In response, the appellant said “OK,” but that it would have to be after she finished her shift at work. The appellant did not inform the officer as to when her shift ended, and they did not agree on where to meet. Moreover, the officer remained in the club for more than two hours after their conversation ended and, despite the appellant’s presence as well, they never spoke again, and there is no evidence that the appellant otherwise communicated an intent to meet him after work during that period. Under these circumstances, although the evidence was legally sufficient, the fact-finding was against the weight of the evidence.

In another sex crime proceeding, the defendant and two others were indicted for the crime of kidnapping, two counts of rape in the first degree and two counts of assault in the second degree with intent to commit the crime of rape. During the trial, the defendant withdrew his plea of not guilty and entered a plea of guilty to assault in the second degree with intent to commit the crime of rape.

Pursuant to the requirements of the Penal Law, the defendant was committed to the County Hospital for observation, and after the receipt of the report from that institution he was sentenced to a term of from one day to life.

The motion for re-sentence is predicated upon an affidavit of his trial counsel in which he says that a careful review of the defendant’s psychiatric report does not indicate in any way that the defendant was psychologically a sex deviant and he then concludes that the purpose of the punishment of the Penal Law of an indefinite sentence of one day to life, was intended for the purpose of enabling sex deviants to receive psychiatric treatment and to be returned to society when the Parole Board determined that the defendant was sufficiently cured of the psychological sex illness so as not to constitute a threat or hazard to society along those lines and that in view of the failure of this report to indicate any such sex disturbances, it appears that the sentence imposed was not in conformity with the intent and purpose of the punishment prescribed in the Penal Law, providing for an indeterminate sentence of one day to life.

The defendant having commenced serving his sentence, it may not now be reconsidered unless it was illegally or irregularly imposed. There was no such infirmity in the sentence in this case. Assuming, solely for the sake of discussion, that the movant’s conclusion is correct, that the psychiatric report ‘does not indicate in any way that the defendant was psychologically a sex deviant, the Court would not be bound by the conclusion of the psychiatrist but could base his determination as to sentence upon his own findings with regard to the defendant’s sexual outlook. In addition, as a matter of law, Penal Law lodges complete discretion in the sentencing court to impose a sentence of one day to life upon the conviction of assault with intent to commit the felony of rape in the first degree regardless of the results of a psychiatric examination of a defendant. The statute does not limit the imposition of such an indeterminate sentence only to those who are found upon psychiatric examination to be sex deviants. There is, therefore, no merit to the defendant’s motion and it is denied as a matter of law.

There are sex offenders that get away with the law by using their unstable psychological situation. If this trick is used on your case and you want to make sure that you will win your courtroom battle, better hire the Queens County Sex Crime Lawyer together with the Queens County Criminal Attorney from Stephen Bilkis and Associates.

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