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Defendant’s Probation was Revoked, New York Appellate Court Weighs In


Two cases were brought before the court for resolution.

On the first case:

On 15 May 2008, an amended criminal judgment was rendered by the Supreme Court of Queens County revoking the sentence of probation previously imposed by the same court on defendant upon a finding that he had violated a condition thereof, and, after a hearing, a sentence of imprisonment was imposed upon defendant’s previous conviction of assault in the second degree. And, on 24 September 2008, a judgment of the same court was rendered convicting defendant of rape in the second degree upon his plea of guilty, and sentence was also imposed thereafter.

The defendant appealed from the said judgments. After due consideration, the court ordered that the amended judgment and the judgment be affirmed.

According to the appellate court, the defendant’s waivers of his right to appeal were: knowing, voluntary, and intelligent. This is in accordance with the court’s rulings in the cases of People v. Ramos; People v. Lopez; and People v. Seaberg. This precludes the review of defendant’s claim that the sentence imposed upon his violation of probation was excessive, as held in the landmark cases of People v. Burton and People v. Kimbrough. Furthermore, since the defendant was informed that a maximum sentence could be imposed if he failed to complete the sexual offender’s counseling program, an appellate review of his contention that the enhanced sentence imposed upon his conviction of rape in the second degree was excessive is also precluded by that waiver; as held in the cases of People v. Bullock; People v. Ruiz; and People v. Greene.

On the second case:

On 28 May 1981, the complainant, a physician’s assistant, was accosted in the office of a Queens medical center by an assailant who dragged her from the medical center office across the street to a nearby automobile repair garage, and there sexually assaulted her. The incident took place over a period of approximately 15 minutes during which the complainant was face to face with her assailant under the bright fluorescent lights of the medical center. According to the complainant, she was able to observe the assailant’s face at the time the rape actually occurred. Shortly after the commission of the crime, the police arrived and transported the complainant to a certain General Hospital for treatment. On the way, however, a man from a nearby used car lot flagged down the police car in which the complainant was seated, advising that someone was breaking into a van. The officers pulled over, leaving the complainant in the vehicle, and proceeded to investigate. As the complainant watched from a distance of about 25 feet, the police removed from the van an individual whom the complainant immediately recognized as her assailant. The complainant subsequently identified the defendant in court as the man who had raped and assaulted her. Cocaine was not found.

On 25 May 1982, the Supreme Court of Queens County rendered judgment convicting defendant of rape in the first degree, and two counts of assault in the second degree, upon a jury verdict, and a sentence was imposed thereafter. The defendant appealed. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress the identification testimony.

According to the defendant, on appeal, the complainant’s out-of-court identification should have been suppressed since it was unduly suggestive. The court disagrees.

Here, it is questionable whether the defendant was indeed entitled to a Wade hearing in connection with the identification, since the defendant concedes that the encounter was not police arranged, as held in the cases of People v. Belushi; People v. Medina; People v. Gissendanner; People v. Moore; and Green v. Loggins of the Ninth Circuit. At any rate, there was nothing in the Wade hearing record which would indicate that the encounter between the complainant and the defendant was suggestive. Furthermore, even assuming, arguendo that the identification was suggestive, the record clearly supported the hearing court’s determination that there existed an independent basis supporting the complainant’s in-court identification of the defendant as the assailant, as held in the cases of People v. Smalls and People v. Burton. Lastly, the defendant’s remaining contentions were without merit.

Accordingly, the appellate court ordered that the judgment be affirmed.

Queens County Criminal Defense Lawyers at Stephen Bilkis & Associates are widely experienced, highly skilled and exceptionally competent especially when it comes to cases like the above two. For advice on how to deal with these types of situations, contact us now and speak with our Queens County Rape Lawyers, Queens County Assault Lawyers, and the like.

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