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Defendant Appeals Criminal Conviction in NY Appellate Court Alleging Ineffective Counsel


The defendant was charged in Queens County of kidnapping in the first, eight counts, and second degrees; rape in the first degree, two counts; sexual abuse in the first degree, two counts; and criminal possession of a weapon in the second degree. Thereafter, the defendant was convicted, after a jury trial, of kidnapping in the first degree, four counts; rape in the first degree, two counts; kidnapping in the second degree; sexual abuse in the first degree, two counts; and criminal possession of a weapon in the second degree. On 15 August 1996, the defendant was sentenced. The defendant appealed the judgment of convictions. According to the defendant, the Court erred by refusing to charge the jury as to the defense of duress and his sentence was excessive. The Appellate Division, Second Department modified the judgment by vacating the conviction of one count of sexual abuse, finding that no evidence pertaining to that count was adduced at trial. Other than that, the Appellate Division affirmed the judgment. The defendant then sought leave to appeal to the Court of Appeals. However, that application for leave was denied. The defendant then moved to vacate his judgment of conviction and argued that he was denied effective assistance of counsel, among other things, because his trial counsel failed to have the serological evidence tested for DNA after the defendant denied any involvement in the rape. On 18 June 2001, the defendant’s motion was denied, and his claims were found procedurally barred pursuant to CPL 440.10 based on the fact that the allegations were in the record, and could have been reviewed on defendant’s direct appeal. The defendant’s claims were found by the court bereft of merit. The defendant then sought leave to appeal the denial of his motion to vacate judgment, and sought a writ of error coram nobis. A sargued by the defendant, his appellate counsel was ineffective for failing to raise on appeal the claims he raised in his motion to vacate. The Appellate Division denied both applications, viz.: defendant’s application for leave to appeal and his application for a writ of error coram nobis.

The defendant, pro se, now moved for an order directing that forensic Deoxyribonucleic Acid (DNA) testing be performed on specific evidence; for an order vacating the judgment of conviction; and to have the defendant produced at any hearing.

According to the defendant, in his motion for an order granting post-conviction DNA testing, identity was the main issue. The defendant admitted to the kidnapping, but denied raping either of the two victims. By reason of the fact that the rape kits of the two victims indicated presence of sperm cells, had a DNA test been conducted on this evidence, the defendant’s innocence would have been established.

According to the People, the motion should be denied because defendant cannot establish that DNA testing could have produced a verdict more favorable to him, and also, the current whereabouts of the rape kits are not known.

In a nutshell, the main issues brought before the court for resolution are: whether or not an order for a post-conviction DNA testing must be granted; whether or not, for such to be granted, it must first be established that a verdict more favorable to him was probable.

Here, the defendant’s arguments cannot be given weight by the court. The defendant’s judgment of convictions was affirmed.

Under Criminal Procedure Law, a court is authorized to grant the application for forensic DNA testing if the court determines that, if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant. In conjunction with the filing of a motion for post-conviction DNA testing, the court may direct the People to provide the defendant with information in their possession concerning the current physical location of the specified evidence. If the evidence no longer exists or the physical location is unknown, the court may direct that the People make a representation to that effect, and provide information and documentary evidence concerning the last known location of the evidence. The court must determine if the DNA evidence exits. In order to do this, the court should take steps to obtain reliable information from the People as to whether or not the evidence sought exists and the source of such information. It is sufficient for the People to submit an affidavit from an individual with direct knowledge of the status or the evidence or an official record indicating its existence or nonexistence.

According to the Police Department representatives and Police Department records, neither of the rape kits was ever returned to the warehouse where such evidence is stored. Apparently, the items were transported to the court from the District Attorney’s (DA) office. The rape kits were marked for identification at the trial and were returned to the trial prosecutor. However, a search of the District Attorney’s office was of no avail.

The People submitted the Bridge Sheet from the court, and affidavits from the ADA and a paralegal assigned to the Special Victims Bureau; an affidavit from a Property Control Specialist stating that she searched the records and inventory of the Warehouse for the two rape kits and the kits were not there.

To sum it up, the evidence adduced at trial established that the incident started with a kidnapping of the two victims on 31 March 2007, and lasted until early morning of 2 April 2007. Both victims were raped, and the defendant admitted to the kidnapping. If a DNA test resulted in identifying the defendant as the source of the sperm, it would conclusively establish his guilt. However, if the DNA test did not result in identifying the defendant as the source of the sperm, it could only establish that the victim had intercourse with the co-defendant. Nonetheless, assuming arguendo that the rape kits were located and tested, it would still not establish that defendant was indeed innocent of the rape. Based upon the records of the case and the parties’ arguments, the defendant has not shown that if the results of a DNA test were admitted in the trial, there was a reasonable probability that the verdict would have been more favorable to the defendant.

In view of the above, the motion to vacate the judgment of conviction was denied in all respects.

Nassau County Criminal Defense Lawyers, among others, at Stephen Bilkis & Associates are exceptionally skilled, well trained and widely experienced. For a consultation with one, call our office or visit us at any of our offices. It’s free of charge. Speak with our Nassau County Sexual Abuse Lawyers, Nassau County Rape Lawyers, and the like. Our legal experts are highly motivated and determined to fight four your cause. Our firm prides itself with the most hardworking legal professionals in the country whose prime motivation is to help in the administration of justice at all times. Help us help you get justice done. Contact us now and get the advice appropriate to your situation. Have a conversation with the best legal professionals in the country only at our firm, and learn how you could best resolve your legal problems with us. If necessity dictates that the legal matter goes to court, don’t deny yourself experienced representation and the quality service that it brings to the table. With us, you get what you deserve and the protection you need. What is in your best interest is also in ours.

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