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New York Appellate Court Decides if Age of Victim is Relevant


On December 6, 2007, Pasqual R 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. R’s 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. R guilty of the above-mentioned charges and his defense attorney appealed to the Supreme Court Appellate Division, First Department.

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. R 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.

Under New York, a person is guilty of third degree sexual abuse when he or she has sexual contact with another person without their consent. A sexual abuse victim is legally incapable of consenting if they are less than 17 years of age. A person is guilty of endangering the welfare of a child if he or she knowingly acts in a way that is likely to cause physical, mental or moral harm to someone under 17 years of age. The prosecutor established that the victim was 14 years old at the time of the alleged sexual acts and Mr. R was 32 years old.

With regards to the burglary charge, under New York law someone is guilty of second degree burglary if he or she knowingly enters a building with the intent to commit a crime.

The appellate court held that the trial court was correct in charging the jury that all the prosecution had to prove was that Mr. R entered the building with the intent to have sexual contact with his victim, not that the victim was under 17 or that he knew her actual age. The court likened their reasoning to that used in cases where a defendant is charged with an attempted crime, rather than the completed act. As such, the appellate panel concurred in their opinion to uphold Mr. R conviction on all counts.

Although Mr. R criminal defense attorney attempted to challenge the court’s ruling, he was unsuccessful in proving his claims. The issues raised by the defense on appeal were contradictory in nature to the objections originally brought at trial, which lead the appellate court to uphold the jury’s verdict.

Hiring an experienced New York criminal defense lawyer is the first step in defending your rights when faced with sex offense charges. If you or someone you love has been arrested for rape, sexual abuse, sodomy or other sex acts involving a minor, you shouldn’t hesitate to retain experienced legal counsel immediately. The law firm of Stephen Bilkis and Associates is available to assist criminal defendants in fighting sex crimes charges. Call 1-800-NY-NY-LAW today to speak with a member of our expert legal team or visit one of our New York area offices to discuss your case in person. Don’t face the judge and jury alone. Call Stephen Bilkis and Associates today to get the help you need to protect your rights.

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