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New York Appellate Court Rules that State of Mind is Not Relevant, Rather the Act Itself in Sex Crime Case


Edgar B was convicted of two counts of second degree sodomy for four instances of improper sexual contact with three young boys. Mr. B was sentenced to two consecutive terms of 3 ½ to 7 years. Each victim testified that he had allowed Mr. B 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. B after being intimidated by the police. In the case of the two other victims, Angel J. and Manny O., Mr. B 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. B’s affiliation with NAMBLA (North American Man-Boy Love Association) as proof of his intent to commit sodomy. Following his conviction, Mr. B’s criminal defense lawyer filed an appeal with the Supreme Court Appellate Division, First Department.

The court examined the testimony presented at trial in making their determination. According to trial records, sometime in February 1984, 13-year-old Manny O. was in Mr. B’s apartment watching movies. As they watched television, Mr. B began playing with the boy’s hair. He then promised Manny he would take him to Action Park if he would allow him to perform oral sodomy on him. In November 1984, Manny was in Mr. B’s apartment with another boy named Luis. Manny consented to the oral sodomy and Mr. B took him and the other boy to the movies.

In January 1985, 11-year-old Angel J. went with Luis and another boy named Tony to Mr. B’s apartment. Tony and Luis went into the bedroom. Angel went to the bedroom later on where he saw both boys with their pants down. Mr. B pulled Angel’s pants down, put him on the bed and orally sodomized him. Angel then left the bedroom alone.

In January 1987, Mr. B placed a phone call to Manny from Rikers Island where he was being held in custody after being arrested. He stated to Manny that he should not say anything to police about what happened in the apartment. He telephoned Manny again shortly before the trial began and advised him not to come to New York.

Tony and Luis, who were both 14, testified on Mr. B’s behalf. Tony denied any sexual contact and also denied witnessing any sexual acts involving Angel. Luis testified that Mr. B never touched him inappropriately and that no sexual contact, including sodomy, ever occurred.

The prosecution’s focus on Mr. B’s sexual preference was also a focal point for the court. Prior to trial, she sought to introduce evidence regarding Mr. B’s two prior convictions for second degree sodomy. The basis for her argument was that since both the prior crimes and the most recent sexual abuse involving minors were perpetrated against underage Hispanic boys, this established a pattern of behavior. The prosecution’s motion was denied but left the door open for her to refile later on if the prior convictions became relevant to the case at hand.

The trial court chose not to rule on a defense motion which would have excluded literature, photographs and videos taken from Mr. B’s apartment after he was arrested, including the NAMBLA newsletters and a poem which described the performance of oral sodomy on a young boy.

In opening statements, the defense acknowledged that the evidence would show that Mr. B was gay but that there was no proof of any improper sexual contact with a child. Furthermore, the defense argued that the police had manufactured the allegations against him based on homophobic fear.

The prosecution renewed her pre-trial application regarding evidence of Mr. B’s prior record and personal background, based on the defense’s allegation that police had been surveilling him extensively prior to his arrest. The court again chose to deny this request. At trial, the prosecution questioned Sergeant Maginnis, the officer who had arrested Mr. B. In her questioning, she attempted to elicit information about Mr. B’s known background and specifically asked if he was a known pedophile. Defense moved for a mistrial but the court allowed the trial to continue and advised the jury to disregard the prosecution’s question.

The prosecutor eventually conceded that it was impossible to prove any sexual contact, sexual abuse or sodomy in the case of Dennis M. She did ask him about the erotic material found in the apartment but he denied ever seeing any of it. Defense council questioned Dennis about his involvement in a harassment lawsuit against the police. The prosecution attempted to establish a link between Dennis and another NAMBLA member but ultimately, the trial judge instructed the jury to disregard this evidence. She was, however, allowed to question Dennis M. as to whether he had any prior knowledge of Mr. B’s sexual attraction to or involvement with young boys. At the end of her questioning, she asked the court to strike any and all testimony concerning the federal lawsuit.

Manny O. testified that he had seen NAMBLA literature at Mr. B’s apartment on at least one occasion. The literature was then passed on to the jury for examination but stated that it was to be viewed only as indicative of his intent at the time of the alleged crimes, rather than a declaration of his beliefs.

A Detective Healy, who was working undercover inside NAMBLA, testified that he knew Mr. B as Richard B, a name that was listed as a contributor to the organization’s newsletter. The prosecutor questioned Mr. H as to whether he had ever seen Mr. B at a NAMBLA meeting where sex acts had been performed. Defense again moved for a mistrial during this line of questioning.

During the cross-examination of Peter Meltzer, the publisher of the NAMBLA newsletter, the prosecution violated the court’s restrictions and asked him numerous questions outside the scope of what was allowed. The poem about oral sodomy that was found in Mr. B’s apartment and had been printed in the NAMBLA newsletter was of particular concern.

In summation, the prosecution made an allusion to Jesus and characterized Mr. B’s alleged crimes as an attempt to keep them from going to Heaven. The jury subsequently convicted him of the sodomy charges relating to Manny and Angel.

In reviewing the case, the appellate court pointed out that the central issue at trial was whether Mr. B had committed sex acts with a minor, not his actual state of mind at the time. However, the prosecution’s line of questioning and the evidence she introduced focused solely on Mr. B’s sexual preference, which was outside the scope of what the trial court agreed to allow. The court further concluded that both the prosecution and the trial judge incorrectly equivocated intent and proclivity and the introduction of the evidence relating to Mr. B’s NAMBLA affiliation should not have been allowed. Furthermore, her references to Mr. B being a pedophile were also improper. Inciting Biblical imagery in her summation was also considered to be an error that could not be overlooked.

Based on the prosecution’s handling of the case and on contradictory testimony presented by Manny O., the appellate court ruled that Mr. B’s conviction for the two second degree sodomy counts should be reversed and his case remanded for a new trial.

The defendant in this case faced serious charges and without the help of his defense attorney, he may not have been able to escape an unfair prosecution. Fortunately, the prosecutor did not pursue additional charges against him, such as possession of child pornography or dissemination of obscene material to minors.

A conviction for rape, sexual abuse, child molestation or another sex crime in New York can have serious consequences, including imprisonment and registration as a sex offender. If you or a loved one has been charged with any of these crimes, you need to contact an experienced New York criminal defense attorney today.

The law firm of Stephen Bilkis and Associates specializes in defending clients who’ve been charged with sodomy and other sex offense. Call 1-800-NY-NY-LAW or visit one of our New York area office locations to discuss your case. Don’t let a conviction for a sex offense ruin your life. Call Stephen Bilkis and Associates today to get the experienced legal representation you need to protect your rights.

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