April 8, 2019

A Cup of Joe | Couple Sleeping Off Hangover When Creep Climbs Into Bed

In this week’s case we meet George Fay, a 23-year-old college drop-out with a wealthy family; a 20-year old college student, Jane, who is Fay’s sexual assault victim; and, Jack Slye, Fay’s intimate friend.

We are in a swanky apartment on East 72nd Street in Manhattan. Jack Slye and his friend Jane are asleep together in the bottom rack of a bunk bed. They had been intimate earlier in the evening.  It is about 3:30 a.m. and Fay is inside pacing with his iPhone in an agitated state. He has been searching for escorts on Backpage.com. He had been unsuccessful on 8 tries. After the ninth try to Backpage.com, Fay gave up. He had an idea: He quietly opened the bedroom door where Slye and Jane were sleeping peacefully. It was now 4:00 a.m. Fay entered the bedroom and climbed into the bottom rack next to Jane. And then his attack begins. It is July.

The Trial

Fay was arrested and prosecuted for the assault. Here is what the jury heard from Jane:

Q: How did you feel while the attack was occurring?

A: I felt confused.

Q: What happened next, Jane?

A: I remember feeling something in my mouth and feeling someone's hands behind me. I thought I was dreaming. I remember thinking, 'What's Jack doing?' I didn’t understand what was happening, it was a little confusing. Then as I woke up, I realized it was not a dream.

I opened my eyes, I thought it was Jack. Who else would it have been? I looked to my left and saw Jack sleeping. That's when I knew.

Q: What did you know?

A: (uncontrollable sobbing) Fay was putting himself inside of me. I was on my back and when I opened my eyes he was on top of me.

Q: And what did you do?

A: Once I realized what was happening I jumped up in a panic, grabbing my clothes and trying to wake Jack up. I was screaming, crying, trying to process it.

Q: What did Jack do?

A: As Jack ushered me out of the apartment, I confronted Fay. I was so furious and hysterical. We went downstairs and a doorman at the building called police when he saw how upset I was.

Fay’s had a different version of the way things went down. Fay’s argument at trial was that Jane, while in a semiconscious state resulting from intoxication and fatigue mistook him for Jack, who was her sex partner, and unwittingly engaged in consensual sex with Fay. And Fay, who was in a similar state mistakenly assumed that Jane knew who he was and was knowingly consenting to sex with him.

During closing arguments to the jury, Fay’s lawyer, Stephen Saracco said: “Was it a poor choice for George Fay to climb into that bunk on July 9? It probably was but we are not making a determination if he made poor choices or bad judgment, we are making a judgment of if he was guilty of rape.” The lawyer then attacked Jane: “If there was anyone who 'put things in motion' it was the student by going home with Slye, he said.

The Verdict

Fay bowed his head and cried as the jury read out the verdict after just 3 hours of deliberation.   The Manhattan jury found Fay guilty on all counts.

The jury was not told that prosecutors spent months trying to get Fay to return to the U.S. to face prosecution. The jury also did not hear that his lawyers tried to get the entire case dismissed because he had left the country.

The Sentence

At sentencing, Fay said the case had been his “worst nightmare” and described his actions as “heinous crimes.” [During the entire trial, Fay had denied that he had done anything wrong and his lawyer blamed Joan].  He apologized to Jane “for her suffering and sadness” and said that the crimes are “not who I am and not who I try to be.” Fay begged the judge for a “second chance at life” and said that he always tried to be a “positive influence on those around me.”

In response, the judge told Fay that “I believe that you did it in a coldly calculating manner” and that he went into the bedroom “knowing full well” what he was about to do. She told him: “For that, you have to take the consequences.”

Fay was sentenced to 10 years imprisonment. He could have gotten 25 years.

Fay appealed.

During the trial, Fay’s attorney made a request to call an expert on sleep disorders, who would have testified about the effects of alcohol on sleep and behavior, including that consumption of alcohol can cause people to engage unconsciously in physical activity while appearing to be awake, and to wake up unaware of the activity.

The trial court did not allow it because it would have required  a  lengthy midtrial continuance for a special hearing to see if the expert opinion was supported by studies and accepted in practice. And it would have required the prosecutors to obtain their own expert. The appeals court held that the untimeliness of the request by itself  warranted denial, and even if the request was timely, there was no evidence that the proposed expert had any experience with the proposed theory.

The appellate court AFFIRMED the trial court and found no basis for reducing the sentence. Fay goes to jail.


Here is the case: https://law.justia.com/cases/new-york/appellate-division-first-department/2019/8564-3654-16.html

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