A state appeals court ordered a new trial for Cesar Urbina, a 53-year-old Peekskill man who was convicted of trying to rape a woman who lived next to his mother in 2009.
The Appellate Division, Second Department, ruled on Oct. 10 that a state Supreme Court made an error by not allowing a jury to deliberate on a first-degree sex abuse charge in addition to the first-degree rape charge that Urbina was eventually convicted of.
Carl Birman, the Mamaroneck-based attorney representing Urbina, argued the court’s decision not to include the lesser attempted sex-abuse charge gave the jury only one option if it was inclined to vote toward a conviction.
Urbina, who was convicted of another first-degree sex-abuse charge in New York City at about the same team he was being prosecuted in Westchester County, was rendered a persistent violent offender by the attempted rape conviction. Urbina has prior convictions for robbery, attempted robbery and felony drug possession.
“It was an abuse of discretion and a violation of appellant’s right to a trial by a jury sitting as the exclusive finder of facts; the appellate divisions have held that the discretion afforded trial courts to not charge certain non-inclusory, concurrent counts of an indictment is limited and should be exercised with restraint,” Birman wrote in his brief.
The state appeals court agreed, calling the Supreme Court’s refusal to submit the first-degree sex abuse charge an ‘improvident exercise of discretion.’
“The submission of that count would not have distracted the jury from the performance of its duty, but would have assisted it in arriving at a fair verdict,’’ the appellate court wrote in its decision. “The court’s improvident exercise of discretion was compounded when the prosecutor asserted in her summation that the court’s reason for submitting only one count was 'because' the defendant was guilty of that count, which strongly implied that the court also believed that the defendant was guilty of that count.”
The appeals court added: “The improper implication was only strengthened when the court overruled defense counsel’s objection.”
Lucian Chalfen, a spokesman for the Westchester County District Attorney’s Office, said Urbina’s initial indictment still remained active and his office will move forward with a new trial.