New York Criminal Lawyer Blog

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 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

Babysitter Charged with Sex Crimes

by Stephen Bilkis

Anne-Marie P., a juvenile, was charged with various sex crimes that included one count of first degree sodomy, two counts of first degree sexual abuse, two counts of third degree sexual abuse and one count of sexual misconduct. These crimes were allegedly committed against Megan H., who was six years old at the time she testified. The court was satisfied in her ability to offer sworn testimony. The case went to trial in Family Court.

Megan testified that the juvenile defendant pulled down her pants and penetrated her vagina using her fingers. She also stated that the defendant put her mouth on her breasts and touched her behind. According to the victim, she attempted to escape the room where the inappropriate sexual contact took place. She also said she did not give Anne-Marie P. permission to do these things.

According to a New York Criminal Lawyer, Megan also testified that she had seen the defendant place her mouth on her brothers’ penises. Cross-examination revealed that Megan had told her mother what happened as well as the detective who took her statement. Reportedly, she could not remember the date or time the inappropriate sex acts took place. She also said that incidents similar to the ones she described had never happened to her friends and she had never seen anything so portrayed on television.

Published on: February 17, 2012

Court Rules in Minor DWI Case

by Stephen Bilkis

According to a New York DWI Lawyer, a Lounge bar petitioned for the dismissal of charges against them by the State Liquor Authority after they were found guilty of selling alcoholic beverages to a person under the age of 21 years. The bar’s liquor license was suspended for 15 days and was imposed a penalty. The person to whom the bar allegedly sold the alcohol was killed in a car accident shortly after driving while intoxicated from the Lounge bar.

A Nassau County Criminal Lawyer said that the record establishes that the Lounge was a topless go-go bar whose entertainment fee was included in the additional cost of each customer’s first drink. The Lounge bar’s witnesses testified that its doorman admitted the minor after he displayed false identification. However, the police officer who subsequently inventoried his personal effects found a variety of identification documents, but no false ones. Moreover, his two friends testified that the identification was not checked at the door, but that he was admitted while they were excluded based on their respective physical appearances.

A New York DWI Lawyer has not disputed that the minor spent about an hour inside the bar. During that period, when his two friends testified that they approached the door to the Lounge bar and observed him inside drinking from a bottle of beer, the Lounge bar witnesses claimed that he was not served any alcohol. In addition, all of the witnesses agreed that at some point he endeavored to bribe the doorman to admit his two underage friends. According to his friends, while negotiating with the doorman, he was visibly drunk and was holding a bottle of Budweiser beer in his hand. The bribery attempt was reported to the bar manager, who testified noticing the minor who was then intoxicated and signaled the barmaid to stop serving the minor alcoholic beverages. No Lounge bar employee made any effort to drive him out.

Published on: February 17, 2012

Court Rules on Diabetic Hypoglycemia Defense Case

by Stephen Bilkis

In 1981, a wife was shot and killed at her home by her estranged husband. The defendant husband was charged for murder in the second degree for intentionally causing the death of his wife. At trial, the husband did not deny that he fired the shots which killed his wife; rather, he offered evidence to establish that he did not have the right state of mind to commit intentional murder. Specifically, the husband sought to show that at the time of the shooting he was suffering from hypoglycemia, a condition resulting from his having taken an excessive amount of insulin to control his diabetes, which rendered him, in effect, intoxicated and incapable of forming the requisite intent.

Records revealed that the defendant husband requested to the jury that manslaughter in the second degree and criminal negligence homicide be charged as lesser included offenses of intentional murder. After the County Court denied his request, the husband was found guilty as charged and a term of imprisonment of 25 years to life was imposed. The husband appealed and raised several grounds of error.

Initially, the Penal Law has established a hierarchy of culpable mental states with felonious negligence as the least liable mental state, recklessly as the next highest, and intentionally as the most liable mental state. It is further recognize that the lower mental states are necessarily included in the higher forms of mental liability. A review of the statutory definitions of criminally negligent homicide, reckless manslaughter and intentional murder reveals that these crimes are distinguished only by the degree of their required mental states. Thus, it is impossible to commit the greater crime without concurrently, by the same conduct, committing the lesser crimes. Criminally negligent homicide and reckless manslaughter are, therefore, lesser included offenses of intentional murder.

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 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 16, 2012

Court Decides Drug Possession and Sale Case

by Stephen Bilkis

On May 24, 2011, a Kings County, New York man was arrested during the execution of a search warrant. According to a New York Criminal Lawyer, the search warrant was the result of an undercover investigation that covered more than four months. On 13 separate occasions, undercover police officer’s observed the man in possession of heroin and in possession of cocaine. They also observed him sell heroin and cocaine on these occasions.

The case was referred to the Brooklyn Treatment Court on August 16, 2011. The man had requested to be considered for Judicial Diversion of his case. Judicial Diversion is a program that was designed for certain felony offenders spelled out in Criminal Procedure Law Article 216. It grants the judges authority to decide which nonviolent offenders have committed their offenses as a result of substance abuse or dependence. They are then given the opportunity to avoid a jail sentence by contracting with the state to complete a court monitored treatment program.

Criminal Procedure Law Article 216 defines the eligible offenders for Judicial Diversion as those “charged with certain Class B, C, D, and E felony drug offenses, or those charged with specified nonviolent offenses listed in CPL § 410.91(4), so long as they do not have a disqualifying condition listed in CPL § 216.00(1).” The District Attorney then decides who among these offenders is eligible. There are to be no violent or Class A felony offenders allowed into the program. The statute does not speak to the inclusion of misdemeanor crimes which are lessor included offenses to the felony charges that an offender has committed.

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 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.