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Appellant Addresses Denial of Omnibus Motion



The is an appeal by the defendant of a decision that was entered in Dutchess County on 5/27/2015. The defendant was found guilty of 6 counts of a criminal sexual act in the 3d degree, 3d degree sexual abuse, and endangering the welfare of a child. This appeal addresses the denial of an omnibus motion to suppress his statements of law to the police.

The judgment is affirmed.

SP was charged with 6 counts of a 3-degree sexual act, 3-degree sexual abuse, and conduct that was found to be endangering the welfare of a child, who was 16 years of age at the time.

This motion had been denied by the City Court, as well as to delete count 10 of the indictment. That portion dealt with an incident where the 16-year-old was out of the jurisdiction. At the court trial, the jury held that the defendant was guilty on all 10 counts.

The court stated that under CPL 20.40, the County Court’s jurisdiction extends to conduct that occurs in the county, and there is sufficient evidence to prove the elements of the offense (People v. Guzman 153 AD3d 1273, 1275). Under CPL 200.20(2)(b). These offenses are likely joinable when they come from separate events, but one can be proven with admissible evidence and is used to prove the second, or where a statute clearly indicates it (CPL 200.20 [2][b][c]. A defendant can ask for a severance where there is good cause (CPL 200.23, People v. Haywood 124 AD3d 798, People v. Lane 56 NY2d 1,7). If there is more evidence for this one offense than others and the jury will have a hard time separating them, or the defendant has key testimony regarding one count, it would be considered good cause. When the counts are combined, the court will not sever them (People v Bonilla 127 AD3d 985).

In this case, the conduct for the indictment took place in both Suffolk and Dutchess Counties. The conduct and proof constituting 9 of the counts were considered admissible for proving the 10th count. The count that took place in Dutchess County was endangering the welfare of a child (CPL 20.40(1)(a). Count 10 was properly included in the offense. The court was correct in determining that it did not have proper authority to sever it.

The people must prove that beyond a reasonable doubt the defendant’s statements were voluntary. If this burden is met, the defendant has the burden to persuade the court. A court’s decision regarding credibility will not be disturbed unless the record doesn’t support it (People v. Ballukonis 35 AD3d 627).

The defendant argues that the police deceived him by saying that making a statement would not run against his interest and would help him. The court says a promise of leniency does not create a situation where the defendant is discouraged to incriminate himself.

The court said that after viewing the evidence, anyone could easily find the essential elements of a crime (People v Davis 28 NY3d 294).

The sentence of the defendant was not excessive.

2018 NY Slip Op 02488

April 11, 2018


If you have been accused of a sex crime such as rape, lewd conduct or child molestation, it is important that you seek legal guidance as soon as possible. If convicted, the consequences of these crimes are harsh and can affect your personal and professional life and include prison time and hefty fines. Speak to the legal team at Stephen Bilkis and Associates for guidance and a free consultation. We have offices located throughout New York, including locations in Manhattan, the Bronx, Queens, Brooklyn, Staten Island, Nassau County, Suffolk County and Westchester County. Call us today to arrange for a free consultation at 1-800-NYNYLAW.


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