The state is expected to appeal the dismissal of an attempted first-degree sexual assault charge against a convicted sex offender.
State may appeal
dismissal of sex
Gilbert Martines was to stand trial
for attempted assault on a 12-year-old boy
By Debra Barayuga
Gilbert Martines, 51, was to go to trial in December on a charge that he attempted to perform oral sex on a 12-year-old boy in April 1999. Defense attorney Valerie Vargo said there was an offer to perform a certain act and her client had hugged the boy, but those actions "didn't cross the line" into conduct that would be a substantial step in sexually assaulting the boy.
She cited a federal ruling that the defendant has to "come up to a point of committing the crime" to be charged with the offense.
The state had argued that Martines "groomed" the boy -- placing him in a position where he would be "vulnerable or accepting" of having sex with another male.
Judge Reynaldo Graulty yesterday agreed with the defense and ruled that although there was "grooming," Martines' conduct fell short of taking a substantial step in committing the offense.
Deputy Prosecutor Marcus Sierra said Martines enticed the boy to his McCully apartment with his collection of "X-Files," alien movies and virtual reality games and tried to seduce the child with compliments, saying he had nice eyes or his hands smelled good.
The youth wanted to leave and did, but Martines had already laid the foundation for the boy's return, Sierra said.
On the boy's second visit to Martines' apartment, the defendant piqued the boy's curiosity and engaged him in a conversation about why he preferred boys over girls because of their "smooth bodies" and how he performed oral sex.
Martines then asked the boy if he wanted oral sex, Sierra said. When the boy declined, Martines tried to convince him to take a nap or hug him on the bed. He also asked the boy why he didn't hug him back when he prepared to leave.
Martines still faces a charge for possession of child pornography, punishable by a five-year term. He has been held without bail since April 29 after a judge revoked his bail based on his potential danger to the community.
Vargo said she will seek to have her client's bail reinstated.
First-degree attempted sexual assault is punishable by 20 years in prison.
Martines was convicted in 1982 of second-degree sodomy and first-degree sex abuse involving two boys, ages 12 and 15.
Shortly after Martines was indicted in the April case, an alleged victim came forward saying he had filed a complaint in 1992 that Martines had sexually assaulted him three years earlier, when he was 13 years old.
However, police never brought the case before prosecutors, Martines was never arrested and the statute of limitations expired.
Police Chief Lee Donohue said in April that his department failed to properly process the boy's complaint and initiated an investigation into why police did not confer with prosecutors for charges.