Late on an October night in 2007, a 15 year-old boy was sleeping over at his brother’s apartment in the City of Ithaca in Tompkins County. Joezaya Berrios who was a family friend was also sleeping over. The boy was sleeping on the sofa in the family room and Joezaya Berrios was on the floor of the dining room. Galvin Lawton and Trevor B. Porter knocked on the door of the apartment where they were staying. Ms. Berrios was acquainted with both Mr. Lawton and Mr. Porter so she opened the door. The men entered the apartment without being invited. Ms. Berrios was not too concerned about letting them in since she knew the men. She went back to the dining room and laid back down to go to sleep again. She told the men to keep down the noise because everyone was sleeping. Once she had laid back down, she heard Mr. Lawton and Mr. Porter talking to the boy. She stated at trial that she heard them ask the boy who was 15 years old and barely five feet tall if he was a boy or a girl. He told them that he was a boy. It was very dark in the room and the boy stated later that he could not see the men’s faces as they towered over him. Mr. Lawton asked the boy in vulgar street terms if he engaged in oral sex. The boy told the men, who were both in their mid-twenties, that he only gave oral sex to boys who were his own age.
Mr. Lawton then lifted the boy up from the couch, by grabbing him under his arms and forced him to perform oral sex on him. Mr. Lawton then forced the boy to give Mr. Porter oral sex. While the boy was performing oral sex on Mr. Porter, Mr. Lawton removed the boy’s pants and began to have anal intercourse with him. The boy complained that it hurt and ran upstairs to wake up his brother. After telling his brother what had transpired, the police were called to the location. Both Mr. Lawton and Mr. Porter were arrested and charged with Criminal sexual act in the first degree and criminal sexual act in the third degree and sexual abuse in the first degree. Both men were convicted. Mr. Porter was sentenced as a second violent felony offender and received a prison term of ten years with ten years of postrelease supervision.
Mr. Porter appealed his case before the Supreme Court of the State of New York Appellate Division Third Department on March 17, 2011. Mr. Porter was represented by New York Sex Crimes Lawyer, John R. Trice Elmira and prosecuted by Gwen Wilkinson, District Attorney, Ithaca represented by Andrew J. Bonavia of counsel. Hearing the case was Honorable Justices Mercure, J.P., Peters, Spain, Malone Jr. and McCarthy, JJ.
Mr. Porter alleged that the County Court officer at the conclusion of his trial had accidentally told the jury that sex abuse in the first degree is a lesser included offense to criminal sexual assault in the first degree. Those instructions are false. Criminal sexual abuse in the first degree requires that the sexual contact be “for the purpose of gratifying the sexual desire of either the victim or the perpetrator.” This element is not mentioned in Criminal sexual act. The fact that the jury was not instructed to consider whether or not the sexual act gratified the sexual desires of any of the parties involved is a critical error. The appellate court ruled that while sexual gratification could be assumed based on the actions and their outcome, the jury found Mr. Porter guilty of the offense without considering this crucial element.
The appellate court ruled that Mr. Porter’s conviction for sexual abuse was reversed and his sentence on that charge was eliminated. A new trial was ordered on that count. Mr. Porter’s other convictions relative to this case were then considered. Mr. Porter was also convicted of first degree sexual abuse and first degree criminal sexual act.
Mr. Porter alleges that the state did not meet their burden of proof as it relates to these charges because they have to show that the victim was forced either by threat of physical force or by physical force itself. On this count, the state agrees that there was no physical force used by Mr. Porter to compel the boy to perform oral sex on him. However, the threat of physical force can be either, direct or implied. An implied threat is any action that places another person in fear that they are likely to be injured. It is not necessary for an actual injury to occur. It is only important that the person thinks that injury is imminent. Mr. Porter contends that he never threatened the boy and that he never took part in the sexual abuse.
In this case, the boy stated that the men had demanded the sexual act in crude street terms and that they were towering over him in the dark. He stated that he had been placed in fear by their actions especially , after Mr. Lawson had pulled him to his feet by lifting him from under his arms. At barely five feet tall the boy stated that their much larger frames scared him and he was too afraid to refuse. Since some of this encounter was overheard by Ms. Berrios, the Court decided that even in the absence of spoken threats, the boy was reasonably too afraid to fight back or resist the demands of the two much older and larger men.
The Court did not believe Mr. Porter when he stated that he had not taken part in the sexual assault of the boy given that the boy testified that both men had assaulted him. His testimony was corroborated by Ms. Berrios who overheard part of the assault. In light of this overwhelming evidence, the Court denied Mr. Porter’s suggestion that this count be overturned as well. The Court upheld his conviction on these two counts.
Mr. Porter then stated that he was too drunk to have formed intent for criminal liability. The Court ruled that even though there was evidence that he had consumed some beer throughout the day, he was not so impaired that he did not demonstrate his intent clearly. In other words, if he was not so drunk that he could not assault the boy, he was not so drunk that he could not accept responsibility that he had formed the intent to assault the boy. Again, this Court found Mr. Porter’s argument to be without basis.
Mr. Porter then brought forth the argument that when the County Court Officer mistakenly instructed the jury in reference to the already dismissed count, that Mr. Porter’s indictment should have been amended. Mr. Porter stated that the amendment should have to include the theory that he had just been “acting in concert.” Acting in concert means that he had just been present at the assault and that Mr. Lawson had been the primary attacker. Mr. Porter stated that he believed that his defense attorney had failed to adequately represent him by not objecting to the instructions that were given to the jury. The Court finds that this complaint is also without grounds since there is an adequate number of precedent cases to reflect that , “”‘[a]n indictment charging a defendant as a principal is not unlawfully amended by the admission of proof and instruction to the jury that a defendant is additionally charged with acting-in-concert to commit the same crime'” (People v Robinson, 53 AD3d 681, 683-684 [2008], lv denied 11 NY3d 794 [2008], quoting People v Rivera, 84 NY2d 766, 769 [1995];”
The Honorable Justices found that Mr. Porter had received adequate counsel at his trial. In spite of the many errors that were claimed by Mr. Porter, most of them only impacted his conviction of sexual abuse in the first degree and are irrelevant now in the light of the dismissal of that charge. In fact, Mr. Porter’s trial counsel asserted that he had heard the erroneous instructions to the jury, but had felt that it would be in his client’s best interest to not confuse the topic with the jury. He stated that since their defense strategy was to claim that Mr. Porter had not participated in the sexual acts at all, that suddenly wanting to clarify the language of being an accomplice would only serve to convince the jury that Mr. Porter was guilty. Since that appears to be a valid strategic reason for Mr. Porter’s trial attorney to not object at the time. The decision of the Honorable Justices then is to disregard this complaint as well.
The Honorable Justices ultimately decided that all of the convictions opposed on Mr. Porter would be valid except for the conviction of sexual abuse in the first degree which was dismissed. Mr. Porter’s indictment was modified to remove that count as well as the sentence that he had received for the commission of the crime. The County Court of Tompkins County was tasked to prepare a new trial for Mr. Porter on the one count of sexual abuse in the first degree. This is so ordered to ensure that a jury takes in to account the section of the law that relates to sexual gratification.
Whether or not the County Court makes mistakes; it is the defendant in such cases who may suffer. In this case, the New York Sex Abuse Lawyer who handled this appeal protected Mr. Porter’s rights. Everyone deserves a fair trial. When the court officials make mistakes, it is incumbent upon the appeals courts to correct them. Don’t put your life in the hands of just any attorney.
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Stephen Bilkis & Associates with its New York Rape Lawyers has convenient offices throughout the New York Metropolitan area including Corona, New York. Our New York Sex Abuse Attorneys can provide you with advice to guide you through difficult situations. Without a New York Sex Crime Attorney you could lose your freedom even if the state has not adequately made its case. In addition to Sex Crime Law, Stephen Bilkis and Associates can recommend New York Personal Injury Lawyers who will help you.