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Articles Posted in SEX CRIMES

When juries are given the ability to determine a defendant’s guilt, the stigma of the crimes alleged sometimes plays a larger factor in the jury’s decision than evaluation of the required elements of the crime. Because of this, it is extremely important in the administration of criminal justice that juries are only allowed to convict defendants of crimes that are legally possible based upon the allegations of the criminal complaint and the evidence presented at trial. The Appellate Division of the New York Supreme Court recently addressed a defendant’s appeal from several New York sex crime convictions, which claimed the evidence against him was legally insufficient to support the convictions.

The defendant in the recently decided case was convicted of first degree sexual abuse after he allegedly made sexual contact with the victim without their consent. Before the trial, the defendant objected to being tried for first-degree sexual abuse, as that charge required a showing that force or compulsion was used to affect the sexual abuse. Additionally, the defendant appealed a conviction for first-degree sexual assault that was handed down based upon his touching two parts of the victim’s body during the same occurrence. The defendant’s pretrial motions were denied, and the defendant was ultimately convicted of the crimes, along with several others stemming from the same criminal episode.

The defendant appealed his convictions to the Appellate Division, arguing that the evidence presented at trial was legally insufficient to prove beyond a reasonable doubt that the defendant subjected the victim to sexual abuse using forcible compulsion. The Appellate Division agreed with the defendant’s arguments, finding that there was not any evidence presented at trial with which a jury could find that forcible compulsion was used. The Appellate Division reduced this conviction to a third-degree sexual assault, which was supported by ample evidence presented at trial. Additionally, the court found that the two separate counts stemming from the same occurrence should not have resulted in two convictions and vacated one of the convictions outright. The defendant’s other arguments were rejected by the court.

In New York, sex crimes vary in type, degree, and consequences. To know the law and know where you stand, it is important to familiarize yourself with the various elements of each crime. Staying informed and hiring an experienced sex crimes defense lawyer are the best ways to guarantee you are treated fairly if convicted.

Below is a very brief breakdown of the many of the sex crimes in New York.  Other charges involving Unlawful Surveillance, and Child Pornography charges are found in other places in the penal law but may require registration as a sex offender upon a conviction.

Sexual misconduct is a broad term, and it happens when one person engages in any kind of sexual conduct with another party, without that second party’s consent. Sexual abuse is a second broad offense that involves what New York law calls “forcible compulsion” – forcing someone into a sexual act either by physical force or the threat of force.

Criminal Sexual Act

A criminal sexual act is slightly more specific: in the first degree, a criminal sexual act means that one person has engaged in oral sexual conduct or anal sexual conduct by force or with someone less than thirteen years old. In the second degree, a criminal sexual act occurs when a person engages in the same kind of conduct with a person less than fifteen years old; in the third degree, the crime comes up when the second party is less than seventeen years old. Punishments for a criminal sexual act vary greatly – for the first degree, defendants can face sentences between five and twenty-five years in prison, whereas for the third degree, punishments are typically one to four years in prison.

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Recently, a state appellate court issued an opinion in a New York child abuse case requiring the court to determine if an interview conducted by a child protective services caseworker was in violation of the defendant’s right to counsel. Ultimately, the court determined that the interview was indeed a violation of the defendant’s right to counsel and ordered the suppression of all statements obtained from the interview.

Generally, when someone is under investigation for a crime, they have the right to have an attorney present when they are questioned. However, the law surrounding this area is quite nuanced, and there is much litigation over exactly when someone is under investigation and what constitutes “questioning.”

The Facts of the Case

According to the court’s opinion, a Child Protective Services (CPS) caseworker interviewed the defendant while he was in custody for criminal charges. At the time, the caseworker had been working on a task force with law enforcement agencies where she received training on how to interview individuals who are accused of committing sexual offenses. The caseworker was aware that the defendant was being represented by counsel for his criminal matter, but no counsel was present during this interview. During the interview, the defendant admitted to having sexual contact with the victim. The prosecution intended to use this statement at the defendant’s trial.

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The COVID-19 pandemic had a profound impact on the country and its ability to function. However, the effect of the pandemic was felt the hardest in New York City. As the number of new cases continues to decline, government functions are starting to resume. Of course, this includes New York criminal trials, which truly represent the backbone of our criminal justice system.

New York courts will need to deal with many challenges as they begin to hear more cases. The old way of doing things may no longer make sense, with jurors, defendants and supporters all crammed into crowded courthouses. Thus, judges, lawmakers, and court administration will need to come up with solutions to address these issues which are consistent with the constitutional mandate for a speedy and public jury trial.   It is critical that whatever new procedures are used, these procedures respect the constitutional rights of defendants.

One issue courts are wrestling with is how to handle live witness testimony. Many witnesses are already reluctant to take the stand and testify at trial. However, with the threat of COVID-19, even fewer witnesses will likely be willing to come to court. Recently, a state appellate court issued a written opinion in a rape case in which an expert witness was permitted to testify over two-way video. The case contains an interesting and important discussion of a defendant’s right to confront the witnesses against him.

Sex offenses are serious crimes, and a conviction for a New York sex crime can carry with it many repercussions aside from potential jail time. One of the most onerous consequences for those who have been convicted of a sex offense is the requirement that they register as a sex offender with the Division of Criminal Justice Services. Depending on the type of offense, a defendant may be required to register for a certain number of years, or for life.

The specific requirements that a defendant is subject to depends on the type of crime for which they were convicted. However, registration requirements are notoriously complex. Indeed, it is not uncommon for someone who is subject to registration requirements to violate the law without knowing that they have failed to comply with the registration requirements. This can result in an entirely separate crime, called a failure-to-register offense. A recent state appellate decision discusses New York sex offender registration requirements as they pertain to social media accounts.

According to the court’s opinion, the defendant was previously convicted of an offense that classified him as a level-three sex offender. As a result, the defendant had to register “any change of address, internet accounts with internet access providers belonging to such offender, [or] internet identifiers.” New York law defines an internet identifier as “electronic mail addresses and designations used for the purposes of chat, instant messaging, social networking or other similar internet communication.”

The New York State Sex Offender Registration Act (SORA), has added a very serious consequence to the commission of many crimes.  The requirements of SORA apply to both New York State convictions and to conviction from other states, if the convicted person is or becomes a New York resident.  Earlier this month, a state appellate court issued an opinion in a case discussing whether a defendant who was convicted for the murder of his 13-year-old sister in Virginia was required to register under the New York State Sex Offender Registration Act (SORA). Ultimately, the court concluded that registration was not required based on the fact that the defendant was not required to register as a “sex offender” in Virginia.

The Facts of the Case

According to the court’s opinion, the defendant was convicted for the murder of his 13-year-old sister in Virginia back in 1989. It was undisputed that there was no sexual element involved in the killing. However, as a result of that conviction, the defendant was required to register for life under Virginia’s Crimes Against Minors Registry Act, which required registration for numerous offenses, including some that were not sexual in nature.

After serving his sentence, the defendant moved to New York. Upon arriving, the Board of Examiners of Sex Offenders was notified and required the defendant to register as a Level III offender. The defendant challenged the registration requirement.

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New York criminal trial lawyers know that New York criminal trials are all governed by the New York Rules of Evidence (NYRE). The NYRE cover which evidence is admissible and how courts should go about determining whether contested evidence should be admitted and presented to the jury. Given the importance of the matter, many New York criminal trials involve lengthy and detailed arguments about which evidence is admissible in a series of pre-trial motions.

Through either a motion in limine or a motion to suppress, parties are able to deal with evidentiary issues in advance of them arising at trial. This has the benefit of preventing the jury from ever hearing certain evidence, rather than objecting to the evidence as it arises and then relying on a curative instruction given by the judge in hopes of preventing the inadmissible evidence from having an effect on the jury’s decision.

Not all evidentiary issues can be resolved in advance of trial, however. In some cases, a witness testifies to an unanticipated fact. In these situations, an experienced criminal defense attorney must object in a timely manner, state the basis of the objection, and be prepared to argue why the objection should be sustained and the testimony stricken. If a defendant fails to object to certain evidence, including witness testimony, in a timely manner, the issue will be waived for appellate review. A recent court opinion in a New York sex crime case alleging the defendant engaged in predatory sexual assault illustrates several common evidentiary issues.

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The reported collapse of the Dominique Strauss Kahn rape case highlights an important principle in criminal procedure that few prosecutors take seriously but that has experienced criminal defense lawyers tearing their hair out. Prosecutors MUST turn over evidence that the defendant is not the perpetrator of the crime to the defense. This disclosure must be done early and is a continuing obligation on the part of the prosecutor’s office. The material that must be turned over is commonly referred to as Brady Material and is generally counter-intuitive in our adversarial system of justice.

Prosecutors often do not take this obligation seriously even though cases have been dismissed based upon the failure to turn over such material and prosecutors may be personally sanctioned for their failure to turn over Brady Material. For example, in Matter of Stuart, 22 A.D.3d 131 (2nd Dept. 2003) a prosecutor was suspended for deceiving the Court about the existence of Brady material and the attorney Disciplinary Rules quite specifically require prosecutors to make such disclosures. See DR 7-103.

The term Brady Material is quite broad and requires disclosure of a wide array of information. This information can include:

Dominique Strauss-Kahn, or DSK as he is often known in the international press, head of the International Monetary Fund was arrested earlier this week for a sexual assault on a hotel maid in Manhattan. DSK is currently remanded, pending the outcome of a new york grand jury investigation and is being housed at the Riker’s Island jail complex here in New York.

Rape and other Sexual Assault charges are very serious and difficult to defend. They require a skilled criminal defense attorney to know the science, law, psychology and factual intricacies of the case, but they are beatable cases.

While little has come out about the evidence at this early stage of the case one can surmise that the prosecution has more evidence than the mere statements of the victim. The New York City police Department and the New York County District Attorney’s Office acted remarkably swiftly to arrest such a powerful and high profile figure.

The New York State Appellate Court sitting in Brooklyn ordered a new trial for Anthony DiPippo who was convicted of rape and murder back in 1997. It was since discovered that Mr. DiPippo’s attorney in 1997 had a conflict of interest which denied Mr. DiPippo effective assistance of counsel. Attorneys for Mr. DiPippo brought a motion to vacate his conviction before County Court Judge Robert Neary who denied the motion but the Appellate Division, Second Department overturned Judge Neary’s decision after learning about the conflict. This marks the second time Judge Neary has been reversed by the Appellate Division in decisions published in the New York Law Journal in the last six months. Please see our previous blog for details on the prior reversal.

Mr. DiPippo was represented at trial by an attorney named Robert Leader who had previously represented Howard Gombert in an unrelated rape. During Mr. DePippo’s trial it became clear that Mr. Gombert was also a suspect in this murder and rape but Mr. Leader failed to disclose his obvious conflict of interest. Despite his assertions that he attempted to introduce photographs of Mr. Gombert’s car at the trial of Mr. DiPippo, the Appellate Division noted that the trial transcript didn’t contain any reference to the admission of the photos.

The right to counsel, that is the right to an attorney which guaranteed in the Sixth Amendment to the United States Constitution not only requires that a defendant in a criminal trial have an attorney but it further requires that the defendant has an EFFECTIVE attorney. If you or a loved one believes that you have been denied effective legal representation, please contact our office.

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