Panel Faults Probation Penalty in Teen Abuse Case

, New York Law Journal

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It also said that the complainant's cross-examination testimony, while not discrediting her, did raise a question of her credibility.

"If an ACD is not appropriate for this appellant, whose record is unblemished except for this one incident, one wonders whether there is any juvenile charged with misdemeanor sexual abuse who would qualify for an ACD," the panel said, imposing an ACD nunc pro tunc to Juan's sentencing.

Richter, in her dissent, said that the majority minimized the severity of Juan's conduct and should have left the Family Court's determination intact.

"The offense did not consist of a momentary lapse in judgment, but rather was a prolonged attack in which the victim told appellant several times that she did not want to kiss him and made it clear that he should leave her alone," she said.

Juan's actions, she added, "indicate a sense of entitlement and disregard for the rights and well-being of others."

Richter said that Juan's academic accomplishments and participation in sports were not relevant to his behavior, and that he only expressed remorse after entering the court-ordered sexual behavior program, when it was in his interest to do so.

Richter also said the majority was wrong to question the complainant's credibility based on her cross-examination testimony that she continued communicating with Juan and told him she didn't want the case to go forward.

"The complainant was a teenager who may not have wanted to have to relive this incident by prosecuting it, or was concerned about the possible repercussions of having someone she knew, a school athlete who was supposedly her friend, punished based on her reporting of abuse," Richter said. "I find her behavior to be entirely consistent with that of sexual assault victims, especially in cases where the complainant knows her assailant."

The majority briefly addressed that criticism in its opinion, saying that it discussed the cross examination to provide "balance" because "the dissenter insists on publicizing the evidence most favorable to the presentment agency, and only that evidence."

Juan was represented by Raymond Rogers of The Legal Aid Society.

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    The moral of the story…play sports, do well in school and you too can sexually assault women!

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