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The appeal brings up for review the fact-finding order dated November 22, 2004.

A Lawyer said that, in a juvenile delinquency proceeding pursuant to Family Court Act article 3, defendant appealed the order of disposition of the Family Court, Queens County, dated February 10, 2005, which, upon a fact-finding order of the same court dated November 22, 2004, made after a hearing, finding that the appellant had committed an act which, if committed by an adult, would have constituted the sex crime of sexual misconduct, placed him under the supervision of the “Probation Department of the County of Queens” for a period of 18 months. The appeal brings up for review the fact-finding order dated November 22, 2004.

A source said that, defendant in another separate case for the crime of rape also filed with the Supreme Court, Appellate Division, Second Department, an application for writ of error coram nobis to set aside a judgment of the County Court, Queens County, sentencing defendant as a second offender on his conviction in New York of second degree assault. Defendant was found to be a second offender because of an alleged prior conviction in California of assault with intent to commit rape. The defendant had been charged in California with assault with intent to commit rape in violation of California statute and had pleaded not guilty. The California transcript indicated that court found defendant guilty as charged in the information. Thereafter defendant was sent to a California mental institution. It was the contention of the defendant that the California proceedings did not constitute a judgment of conviction under California laws and that therefore he did not have a prior felony conviction.

The issue in this case is whether defendant is guilty of the crime of rape.

FCA § 301.2(8) defines “designated felony acts”, which may only be prosecuted as such in Family Court. These constitute a special class of juvenile delinquency cases which subject individuals who are thirteen, fourteen or fifteen years of age to possible enhanced sanctions upon being found to have committed one or more of the enumerated delinquent acts. First degree rape, as defined in PL § 130.35(1) is unmistakably included within this designated felony definition. CPL § 1.20(42) and PL §§ 10.00(18) and 30.00(2) define a “juvenile offender” as a person thirteen years of age who, for murder in the second degree, and a person fourteen or fifteen years of age who, for certain specified serious felonies, may be prosecuted in the adult criminal justice system and may be subject to even harsher penalties than those available in Family Court upon conviction. Once again, first degree rape, as defined in PL § 130.35(1) clearly falls within this definition. In addition to first degree rape, several other serious felonies overlap within this designated felony/juvenile offender definitions.

The presentment agency alleged that the appellant had committed an act which, if committed by an adult, would have constituted the crime of rape in the first degree by forcible compulsion. At the close of the fact-finding hearing, the Family Court, in effect, found a lack of proof of forcible compulsion in finding that the evidence did not prove that the appellant committed an act constituting rape in the first degree. Thus, as correctly conceded by the presentment agency, the Family Court erred in finding that the appellant had committed an act which, if committed by an adult, would have constituted the crime of sexual misconduct based on the same evidence.

Accordingly, the Court held that on defendant’s indictment for sexual misconduct, the order of disposition of the Family Court is reversed, on the law, without costs or disbursements, the fact-finding order is vacated, and the petition is dismissed. Further, on the defendant’s rape case, the Appellate Division of the Supreme Court, Queens County, entered an order denying the application without a hearing is hereby affirmed.

If you are a juvenile and committed a sex crime, you will need the assistance of a Queens Rape Attorney and Queens Criminal Attorney at Stephen Bilkis and Associates in order to defend your case.

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