New York Criminal Lawyer Blog
Due to the nature of the underlying allegations and elements of the offenses themselves, there are certain crimes in New York that carry with them a horrendous stigma. Both misdemeanors and felonies, many of these crimes are New York Penal Law Article 130 sex offenses and include Forcible Touching, Penal Law 130.52, on the “lesser” end, and varying degrees of Rape on the more violent side of the spectrum. While it would be hard to disagree that individuals convicted of these crimes are deserving of our collective scorn for their sexual misbehavior and abuse of another, what is unjust is our cavalier willingness to strip these individuals, often men, of their presumption of innocence. Instead of treating and holding them to the same standard we are entitled and would demand for our loved ones, we, without pause, saddle them with something far worse – not a mere presumption but a firmly held determination of their guilt right out of the box. Fortunately for a recent Saland Law client accused of Forcible Touching by a former co-worker, despite this presumption of his guilt and months of challenging the arrest, prosecutors finally dismissed the case against him on the merits.
Briefly, our client, a man lacking a full command of the English language having immigrated only recently, worked for a contractor in New York City. Skilled at his craft, his employer assigned a new hire, a woman, to work with him. Because the co-worker had no experience in the field, our client, in a professional, but genuinely caring manner, took his new colleague, and later accuser, under his wing. Generous with his time and even some financial assistance to a fault, our client even purchased some items for her that she needed to do their job. Despite his best efforts to bring the woman along, the employer ultimately gave her notice of her termination for her inability to do the job to the standard they required. Shortly thereafter, despite having worked with our client for weeks and never having made such a claim, the woman stated our client sexually abused her during their time together and filed a police report asserting the same.
From the outset, our client steadfastly maintained his innocence as prosecutors wanted him to plead guilty to the top offense. As a “carrot” to accept such a plea, prosecutors did not recommend incarceration, but a sex offender program. Unwilling to plead guilty to any crime, and prosecutors still believing the complainant despite our representations, the case ultimately progressed through motion practice and to a trial part where we would commence a hearing followed by jury selection. Ultimately, having provided some information that exonerated our client, and doing so when we learned of it, the third, or possibly fourth, prosecutor assigned to the case took the steps to get ahold of the witnesses we shared and review the evidence we submitted.
The evidence of our client’s innocence was as compelling as it was truthful. Among other things, on the two dates the complainant claimed our client had forcibly and intimately touched her, the complainant first alleged a different day for one of the purported incidents. Further, not only was our client not working that day, but the employer assigned the parties to a different location on the “corrected” day after the complainant tried to fix her story. Similarly, on the second alleged incident, the time of the purported crime was inconsistent with records reflecting where and when the parties were working.
As the complainant’s story began to unravel with inconsistencies we could corroborate, and impossibilities in terms of times and locations, the prosecution stepped back their readiness to proceed. First dropping a previously mandated sex offense program as a condition to a plea, the Assistant District Attorney then offered our client a non-criminal disposition. Ultimately, after doing their homework and our client rejecting any and all offers, the People moved, and rightfully so, for a dismissal.
Although it is important to recognize that the probable cause standard to arrest is far lower than proof beyond a reasonable doubt, and investigations are often necessary even when a person is innocent of all wrongdoing, there is often a presumption by both the public and law enforcement as to a complainant’s veracity and, by default, an accused’s guilt. Such a predetermined view is as unjust as it is dangerous, sometimes forcing an accused to go “the distance”, aka, trial, to exonerate themselves.
Jeremy Saland, a New York criminal defense attorney, former Manhattan prosecutor, and trial lawyer, has secured acquittals for clients at trial in a wide assortment of felony indictments and misdemeanor complaints including for sex offenses set forth in Penal Law Article 130.