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Defense Contends Charge of Predatory Sexual Assault Cannot be Upheld


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.

The defense contends that without a separate and distinct incident, the charge of Predatory Sexual Assault cannot be upheld. They contend that in order to charge him with this offense, the state would be violating his right to due process as to the precedent charge. He would be assumed guilty of the first offense without the right to trial on that offense. The court evaluated both sides of this argument. They recognize that the Predatory Sexual Assault statute was designed to penalize recidivist or serial sexual offenders which is why the statute requires the state to present at least one prior offense. It does not state that it must be presented in a separate and distinct trial, only that it must be presented.

Upon evaluation of the legality of the application of the law by the prosecution, the court determines that there is no statutory requirement that the precedent case must be presented separately. In the case at bar, the prosecution plans to present both cases at trial. If the jury determines that the offender is not guilty of the first case, they will have to find that he is not guilty of Predatory Sexual Assault in the second offense. The prosecution is confident that given the evidence that they possess, a jury will not do that. Therefore, the court determines that there is no legal reason why the prosecution cannot present both cases to the jury at one trial. The defense motion to dismiss the charges of Predatory Sexual Assault are dismissed and the case is remanded to trial.

Stephen Bilkis & Associates has rape Lawyers with convenient offices throughout Kings County and the Metropolitan area. Their sexual assault Attorneys can help you if you need guidance through difficult situations.

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