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Dimitry Esquire
Dimitry Esquire, Attorney
Category: Criminal Law
Satisfied Customers: 41221
Experience:  I provide general practice and mediation & arbitration services to my clients.
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For Dimitry Continuing our discussion on my son, but new

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For Dimitry: Continuing our discussion on my son, but new questions: My son and the girl were not caught together. After she left with her father, when everything seemed fine and I think my son was just disappointed at the interruption, we do not know what happened. But two hours later the police showed up (he was leaving his job as a lifeguard at the town pool (the incident occurred on park grounds during his break)) and picked him up. They took him to the station and asked him questions. At first he did no want to tell the story for the sake of the girls reputation. Eventually the police told him the girl was in another part of the police station claiming she said NO and he forcefully touched her. At that point my son gave a statement and allowed the police to photograph the text messages (they told him he could go home if he did), and they charged him with "forcible touching" and sent him home. We didn't find out till the next day. Because it happened during working hours on park grounds he was immediately fired from his job. Our questions: Do they have to prove somehow that my son used force? Is that the crime? if so, how can they prove that with no witnesses or physical evidence? The girl showed some scratches on her legs, but coincidentally, she had sent my son a text describing the scratches on her legs from her brother tackling her the day before. How else could they prove anything? Can the town take any other action besides firing him from the lifeguard job?
Yikes, thank you for your follow-up.

Did they EVER (even once) tell him that he was formally detained, or that he had a right to counsel?
Customer: replied 6 years ago.
He says they gave him a sheet of paper with the "right to an attorney" stuff. He didn't know about "formally detained" but he was not alowed to go home because he "was a suspect in a complaint." Eventually (after 3 hours) they told him he "could probably go home if he gave a statement." Which he did. By that time he thought the statement would clear his name - he was also busy lying to us via text messages about where he was - still delusional about handling this himself.
I see. The police acted just barely within the rules here (the police officer must have given them specific instructions as to just how to behave). Under New York law, any interrogation must be interrupted after every 3 hours to give the person a break, which is what the police did in this situation. "Detainment" also is defined where freedom of movement is restricted--which is what occurred to your son.

I am still not sure if the "admission" will fly, as their request to provide him with an attorney may or may not have been properly explained (and if not, the whole interrogation can be removed, including the texts that his statement or admission). The problem you will face is that you will need a good attorney to argue in front of the judge that your son's rights were violated (and there is enough evidence to at least make that argument very persuasive) and if your attorney prevails, about 60% of the evidence against your son literally becomes unusable.

Hope that helps.

Edited by Dimitry Alexander Kaplun on 8/1/2010 at 9:37 PM EST
Customer: replied 6 years ago.
Thaks, Dimitry. I guess until our attorney engages we won't know if my son's statements were damning and we shoud try to get them thrown out. We believe the text messages will support his case that the girl was consenting. Is that all irrelevant because of their ages? Our questions: Do they have to prove somehow that my son used force? Is that the crime? if so, how can they prove that with no witnesses or physical evidence? The girl showed some scratches on her legs, but coincidentally, she had sent my son a text describing the scratches on her legs from her brother tackling her the day before. How else could they prove anything? Can the town take any other action besides firing him from the lifeguard job?

 

You are most welcome.

Really, any statements made to the police with an attorney can be "damming" if they are spun the right way by the prosecution--it is always safer to remove the whole interrogation rather then parts of it.

In terms of consent, since she is underage, that consent would be deemed irrelevant. On the bright side, to really pursue your son, the prosecution would have to show at least a 3 year difference in age--there is none here and therefore your son cannot be fully charged under the sex crime statutes of new york. For future reference, here is a link to most of the sex crimes under the NY Penal Code which you can review when you get a chance for yourselves:
http://ypdcrime.com/penal.law/article130.htm

The statute that your son was charged under does not require force--it simply requires that the other party be under 17 in age. Not to frighten you, but the town can definitely terminate him, and if your son is convicted, may try to put him on the sex offender list--this is HIGHLY unlikely, but theoretically possible.

Edited by Dimitry Alexander Kaplun on 8/1/2010 at 9:51 PM EST
Customer: replied 6 years ago.
YIKES. I'm frightened! It sounds like because of her age (she'll be 17 in two weeks and he was 18 in February) and the admission of sexual contact, he IS guilty of "forcible touching" even if there is no evidence of FORCE? I've been hoping that, with no evidence of force, how can there be "forcible touching" and the case would be dismissed. If they were charging him with unlawful contact with a minor why pick the "forcible touching" law instead of the "Sexual Abuse in the third degree" law which has age provisions?

I'm all confused! If he's guilty of "forcible touching" just because of her age, and found guilty, would he automatically go on the sex offender list? Under what circumstances would they do that?
Again, do not be frightened--your son goes on the sex offender list if the charges get upgraded--that charge by itself is not enough. In addition, proving "force" is still required under "forcible touching"--only if they also charge him with the sexual abuse in the third degree do they not have to prove force (but then the charge is much lesser). They still must prove force, and their best option may be to get the girl to testify. To get on the "sex offender" list your son would have to be convicted of a felony--this is NOT such an offense.

Edited by Dimitry Alexander Kaplun on 8/1/2010 at 10:15 PM EST
Customer: replied 6 years ago.
OK. Thanks! Thanks! Thanks! Final wrap up:
1.) The girl's age, because my son is only 18 months older, does not come into play with the forcible touching charge?
2.) If they got the girl to testify, and her claim of force were more credible than my son's claim of innocence, they could convict him of forcible touching, even with no other proof?
3.) If they convict him, a class A misdemeanor like this is not enough to get on the sex offender list, right?
4.) With no evidence of force other than the testimony of my son and the girl, it is possible our attorney might get a request dismissal for lack of evidence?
You are most welcome!
1.) The girl's age, because my son is only 18 months older, does not come into play with the forcible touching charge?
Not from reading the statute, no.
2.) If they got the girl to testify, and her claim of force were more credible than my son's claim of innocence, they could convict him of forcible touching, even with no other proof?
Correct--if they believe her beyond a reasonable doubt, then your son can be convicted.
3.) If they convict him, a class A misdemeanor like this is not enough to get on the sex offender list, right?
Not from what I have seen--that is a low level offense.
4.) With no evidence of force other than the testimony of my son and the girl, it is possible our attorney might get a request dismissal for lack of evidence?
He may try to get the dismissal of the testimony, and therefore can make the prosecutor lose his case, but he cannot simply dismiss the charges unless the prosecutor agrees to drop them also.

God luck!
You are most welcome!
1.) The girl's age, because my son is only 18 months older, does not come into play with the forcible touching charge?
Not from reading the statute, no.
2.) If they got the girl to testify, and her claim of force were more credible than my son's claim of innocence, they could convict him of forcible touching, even with no other proof?
Correct--if they believe her beyond a reasonable doubt, then your son can be convicted.
3.) If they convict him, a class A misdemeanor like this is not enough to get on the sex offender list, right?
Not from what I have seen--that is a low level offense.
4.) With no evidence of force other than the testimony of my son and the girl, it is possible our attorney might get a request dismissal for lack of evidence?
He may try to get the dismissal of the testimony, and therefore can make the prosecutor lose his case, but he cannot simply dismiss the charges unless the prosecutor agrees to drop them also.

God luck!

Edited by Dimitry Alexander Kaplun on 8/1/2010 at 10:35 PM EST
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