THE RIGHT TO TREATMENT CASES...cont

September 20, 2014,

We conclude that appellant was entitled to a jury trial, first, because the crime with which he was charged was an indictable and serious offense at common law, and second, because the crime itself is morally offensive and Malum in se.

Even if a first conviction becomes the subject of a mandatory youthful offender finding thus purporting not to be a criminal conviction, this finding itself may become a predicate in a subsequent prosecution wherein youthful offender status may be denied. Having been rendered in a constitutionally defective proceeding lacking trial by jury, its utility in the statutory scheme becomes null and void.

THE PREDICATE NATURE OF A YOUTHFUL OFFENDER FINDING

We respectfully submit that the "youth-adult" classification does not apply here. We are not now faced with a youth who, being given special benevolent treatment may be classified separately from an adult. In reality, the classes matched against each other in this instance are youths with no criminal convictions as against youths with prior convictions. In so doing, the state moves a youth from one category to another on the basis of state action via its courts which deny the right to trial by jury. This it may not do constitutionally.

The primary purpose of the youthful offender law is to prevent the imposition of increased punishment on a subsequent conviction of this defendant of a crime. In effect therefore, the State of New York not only establishes the first (viz. mandatory) youthful offender finding as a predicate or basis for denial of such treatment in a future prosecution without a constitutionally mandated trial by jury, but does so even in the face of holdings characterized by Shannon which disapprove the concept of escalating punishment.

THE RIGHT TO TREATMENT CASES:

The annals of constitutional law may well single out the decade of the 1960's as the most fertile and creative in history. As an offshoot to an unparalleled expansion of Constitutional frontiers, the landmark decisions of the Supreme Court also triggered lower courts and intermediate courts of appeal to extend themselves and grant recognition to new and innovative doctrines, ideas which were so far ahead of their time that they are first reaching the high court in the middle and late 70's. One of these children of the 60's is that line of authority which has come to be known as the "right to treatment" cases. These cases which were originally litigated in the field of mental health held in effect that where a state guarantees benevolent treatment to a classified group, and thereby deprives an individual of liberty for any period however brief through proceedings which lack any element of classical 14th Amendment due process, it is under a positive obligation to furnish treatment. When a state deprives an individual in the name of treatment and fails to furnish it, the cause or pretense of detention becomes illusory thus rendering further confinement constitutionally unlawful.

In a case decided by the Court of Appeals, the court considered a statute providing for commitment of mental defectives. The court gave judicial recognition to the right to treatment and remanded for appropriate considerations on specifics thereof. The importance of the right-to-treatment cases and Supreme Court approval thereof becomes apparent from the fact that this interpolated right which first saw the light of day as applied to mental patients was extended to juvenile proceedings before O'Connor reached the Supreme Court.

We thus arrive at the inevitable conclusion that the State of New York by providing for a constitutionally defective trial for mandatory youthful offenders, is under a concomitant obligation to provide treatment, an obligation it makes no pretense at meeting. While the statute provides for benign handling of youthful offenders, it is totally silent on the issue of treatment. We therefore find New York's youthful offender statute constitutionally defective as failing to provide constitutionally mandated treatment as Quid pro quo for denial of trial by jury.

Designated Felony...cont

September 20, 2014,


Respondent does not indicate whether he believes the absence of a five year statute of limitations violates procedural or substantive due-process. Procedural due-process imposes constraints on the procedures through which the government deprives persons of protected liberty or property interests. It requires notice of such potential deprivations and an opportunity to be heard. "Substantive due-process" on the other hand bars certain governmental actions regardless of their procedural fairness. It prohibits abuses of governmental power which are arbitrary and without "reasonable justification in the service of a legitimate governmental objective." Respondent's claims here are that the procedures which would be used to subject him to civil management would be unfair because his felony convictions arose in 1992. He asserts that a fact-finding process which would take place 18 years after his sex crimes would impair his ability to defend himself and cites many of the well-known reasons for the imposition of statutes of limitation. He points out that memories of these past events will have eroded and that evidence which may have existed at the time of the Respondent's crimes might no longer be available. He further argues that he was not on notice at the time criminal charges against him were brought that he should collect or to preserve evidence which might be relevant to a sexual motivation determination. In the Court's view, these claims allege a violation of procedural rather than substantive due-process.

There is also a risk of an erroneous deprivation of that interest through the absence of a statute of limitations. As the Respondent argues in this case, his ability to defend against allegations that his crimes were sexually motivated would be compromised because he would have to contest and potentially present evidence concerning events which occurred 18 years ago. While that risk is not insignificant, however, there are also a number of aspects of the procedures which the law provides in such cases that militate against that risk. First, the burden of proving sexual motivation in this case is on the State, not the Respondent. Thus, while the Respondent would obviously have difficulty defending against allegations which occurred 18 years ago, the State would face an even more significant burden in proving those allegations by clear and convincing evidence.

People v Moore, People v Doyle... cont

September 19, 2014,


The court values the opinion of Professor Denzer's annotation to section 190.65 that the precise meaning of sec. 251 of the Code of Criminal Procedure was not readily discernible from the language of the statute. People v. Peetz declared a prima facie case to be necessary for indictment but what else, if anything, was required was always something of a mystery.
The felony hearing demands a lesser degree of proof than that needed to sustain an indictment or to sustain a conviction. Sec. 180.70 of the Criminal Procedure Law requires the People, in a felony hearing to demonstrate only 'reasonable cause to believe that the defendant committed a felony. Both terms 'legally sufficient evidence' needed for conviction and 'reasonable cause' are defined by section 70.10 of the Criminal Procedure Law.

'Legally sufficient evidence' needed to support conviction, must, if accepted as true, establish every element of the crime, the defendant's commission of the crime, and the necessary corroboration when such corroboration is demanded by the law.

CPL 70.10(2) defines 'reasonable cause' to be present 'when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.'
Professor Denzer in his practice commentary on sec. 180.70 CPL notes (p. 78) that the 'reasonable cause' standard, defined by CPL 70.10(2) 'does away with the requirement of a prima facie case. In effect, if the evidence was sufficient for issuance of a warrant of arrest or for an arrest without a warrant--all other things being equal--it should be sufficient to hold a person for the action of the grand jury.' The staff of the Temporary Commission on Revision of the Penal Law and of Criminal Procedure noted that Section 70.10 CPL substantially restated sec. 389 of the Code of Criminal Procedure. The weight of authority in the cases decided before the effective date of the Criminal Procedure Law was that under sec. 389 of the Code of Criminal Procedure, corroboration need not be made out at a preliminary hearing.
Often cited in support of this proposition is People ex rel. Willett v. Quinn, in which the court said:

'A committing magistrate is not required to exact the full measure of proof necessary to secure a conviction, but is obliged to hold one accused of crime for trial if there is 'reasonable ground to believe him guilty as ruled in People ex rel. Fleischman v. Fox, People v. Steinhardt and Matter of Paul.'

In People ex rel. Baron v Warden of City Prison, a habeas corpus proceeding, the relator was held after examination before a city magistrate on a felony charge which by statute required corroboration to justify a conviction. The relator conceded that all necessary elements of the crime charged had been covered on examination except for corroboration. The court agreed, but, distinguishing the case from People ex rel. Perkins v Moss said that in that case, a prosecution for larceny, there was no proof of intent, an essential element of the crime of larceny. In this case, the court held that there is no such hiatus. Lack of corroborative testimony becomes essential upon the trial only, and the Perkins Case does not change the rule in this regard.

In People ex rel.Odell v Hell, it was held that a preliminary examination is not a trial but merely an inquiry, after a criminal charge has been initiated, to determine whether there is sufficient or probable cause to believe that a crime has been committed and the accused guilty thereof. It is not necessary that all of the essential elements of the crime be proven beyond a reasonable doubt.

To the same effect is People ex rel. Giallarenzi v Munro in which, after repeating virtually unchanged the foregoing language in People ex rel. Willett v. Quinn the court held that it is not necessary to produce before the committing magistrate such evidence as would prove beyond a reasonable doubt that the relator is guilty of the crime charged. If at the examination following arrest the people are obliged to produce sufficient evidence to show beyond a reasonable doubt that the accused is guilty of the sex crimes committed, grave injustice might be done and many a felon might go unpunished.

The court orders that defendant is held for the Grand Jury.

THE RIGHT TO TREATMENT CASES

September 19, 2014,

Defendant, a 16 year old boy, is charged with petit larceny and criminal possession of stolen property both arising out of an alleged pocket-book snatch on May 1, 1978. He was arraigned the next day and held in bail pending a hearing which was held on May 18, 1978. Both charges are class A misdemeanors carrying a maximum penalty for non-youthful offenders of one year's incarceration. Inasmuch as this 16 year old defendant has never been convicted of a crime or found to be a youthful offender, he is eligible for mandatory adjudication as a youthful offender carrying a maximum penalty of six months incarceration. In this instance, because he must be accorded this mandatory adjudication, the statute requires a single judge trial without a jury. Had the defendant already once been adjudicated a youthful offender thus placing his being treated as such on this occasion within the court's discretion, he would be entitled to trial by jury.

Defendant now challenges the constitutionality of the statute depriving him of a jury trial. The court is here presented with a constitutional challenge to Criminal Procedure Law § 340.40(7) which denies trial by jury to a youth who is eligible for mandatory youthful offender treatment at the same time this right is available to any other defendant, a discretionary youthful offender included, who is charged with the same crime.

The limited power of trial courts to strike down a State statute as unconstitutional has been stated repeatedly. Particularly courts of first instance should not exercise transcendent power of declaring an act of the Legislature unconstitutional except in rare cases where life and liberty is involved and the invalidity of the act is apparent on its face.
We find CPL § 340.40(7) constitutionally offensive and strike it down for the following reasons:
THE CRIMES CHARGED ARE "SERIOUS" WITHIN CONSTITUTIONAL CRITERIA THUS MANDATING TRIAL BY JURY

The Sixth Amendment's requirement of trial by jury for crimes has been held to refer to "serious" crimes as opposed to "petty" ones (The Court stating the ruling in Duncan v. Louisiana and Baldwin v. New York). The emphasis of the Sixth Amendment is on the crime itself and not on the prospective punishment. Indeed, when Baldwin v. N. Y., set up the six month line of demarcation between "serious" crimes and "petty" ones, it never undertook, even by its own terms, to redefine any crimes. Rather the six-month boundary was a convenient rule of thumb. Taken together, Duncan and Baldwin did not change the public policies of the separate states. Rather, they took pains to insure that a state could not maneuver away from Sixth Amendment jury trial guarantees by the simple act of classifying a serious crime otherwise. The high court has been very careful to leave to the separate states the power to set their own public policy; to delineate acts which they consider criminal, either "serious" or "petty"; the right to call forth moral condemnation of these acts by conviction; and the right to set punishment. The notion that the ultimate sentence imposed defines the nature of the crime, a fortiori has received its share of Supreme Court condemnation. Moreover, it is clear from both Baldwin and Duncan that a "serious" crime may be, and when appropriate, must be defined as such even where a six-month sentence is not imposed by statute.

Baldwin did not hold that the maximum potential sentence was the sole criterion by which to determine whether an offense was petty; it said only that the maximum penalty was 'the most relevant' objective criterion in making the petty or nonpetty determination.

To Be Cont...

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Grand Jury was "severely undermined"

September 18, 2014,

Section 35.15(2) sets forth further limitations on these general principles with respect to the use of "deadly physical force": "A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless (a) He reasonably believes that such other person is using or about to use deadly physical force * * * 4 or (b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery" (emphasis added).

Thus, consistent with most justification provisions, Penal Law § 35.15 permits the use of deadly physical force only where requirements as to triggering conditions and the necessity of a particular response are met. As to the triggering conditions, the statute requires that the actor "reasonably believes" that another person either is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies, including robbery. As to the need for the use of deadly physical force as a response, the statute requires that the actor "reasonably believes" that such force is necessary to avert the perceived threat.
Because the evidence before the second Grand Jury included statements by criminal defendant that he acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to charge the justification defense in Section 35.15 to the Grand Jury. The prosecutor properly instructed the grand jurors to consider whether the use of deadly physical force was justified to prevent either serious physical injury or a robbery, and, in doing so, to separately analyze the defense with respect to each of the charges.

Accordingly, a jury should be instructed to consider this type of evidence in weighing the defendant's actions. The jury must first determine whether the defendant had the requisite beliefs under section 35.15, that is, whether he believed deadly force was necessary to avert the imminent use of deadly force or the commission of one of the felonies enumerated therein. If the People do not prove beyond a reasonable doubt that he did not have such beliefs, then the jury must also consider whether these beliefs were reasonable. The jury would have to determine, in light of all the "circumstances", as explicated above, if a reasonable person could have had these beliefs.

Constitution of the State of New York....cont

September 17, 2014,

In his pretrial motion papers, defendant sought to suppress tape recorded statements made on March 5, 1993 during a phone call between himself and Y, an alleged accomplice turned cooperating witness. The Court then ordered a Huntley hearing to determine whether defendant's statements were obtained in violation of his right to counsel, or were otherwise involuntarily made.

The Court’s Ruling:

This case presents the novel question whether interrogation by federal authorities, independent of any involvement by New York state officials, of a suspect known to have retained counsel on the specific matter under investigation violates the "indelible" right to counsel guaranteed by the Constitution of the State of New York. Defendant argues that because Y acted as a government agent at the time he questioned defendant about events that formed the basis of criminal charges ultimately brought by the state, he is entitled to the benefit of New York's expansive protection of the right to counsel, which he asserts was violated by Y's conduct. The People effectively concede that had the taped call been instigated or colluded in by state officials, they would not succeed in introducing the evidence at trial. They maintain, however, that since the conduct of the federal authorities violated no federal law or policy and preceded the state investigation by more than a year, it did not offend the State Constitution and the tape recording should therefore be admissible. For the reasons that follow, I conclude that under New York law, defendant's right to counsel was indeed violated by the surreptitious questioning, and that defendant's statement--obtained by an agent of the federal government at a time when the government was on notice that defendant was represented by counsel in a directly related civil matter--cannot be used at the present state criminal trial.

In short, where an individual has actually retained counsel on the matter at issue, the courts in New York recognize that he has activated "his constitutional right to interpose an attorney between himself and the overwhelming power of the State", and that this relationship should be fostered and respected.

Assessing the parties' contentions in light of the foregoing principles, it bears emphasizing that the following critical facts are not in dispute. When Y called defendant on March 5 at the direction of the federal authorities, defendant had retained counsel to defend him in a pending civil action arising out of the same allegedly criminal transaction that was the subject of the federal inquiry. Indeed, the People concede that the federal investigation and the civil action, as well as the present criminal case in New York County, were all generated by the identical conduct, and are thus "related" for purposes of determining the scope of defendant's right to counsel. Moreover, the federal authorities were on notice of defendant's representation by counsel in the Trust litigation in London at the time of the phone conversation between Y and defendant, as they had received the civil action pleadings and letters bearing defendant's attorney's name during the course of their investigation. Finally, it is undisputed that Y acted at the behest of the U.S. Attorney's Office and thus as an agent of the government when he placed the call to defendant and elicited statements from him about their last conduct together.

In a similar case, Justice Andrias rejected the People's argument, emphasizing that "even if the defendant has not been formally charged and is not in custody, where 'a defendant is known to have invoked the right to and obtained the services of counsel on the matter about which the person is questioned, the State may not use the statements elicited from that person in the absence of a waiver of counsel made in the presence of the attorney'."

Grand Jury was "severely undermined"

September 17, 2014,


On January 25, 1985, the Grand Jury indicted defendant on one count of criminal possession of a weapon in the third degree, for possessing the gun used in the subway shootings, and two counts of criminal possession of a weapon in the fourth degree, for possessing two other guns in his apartment building. It dismissed, however, the attempted murder and other charges stemming from the shootings themselves.

On March 27, 1985, the second Grand Jury filed a 10-count indictment, containing four charges of attempted murder, four charges of assault in the first degree, one charge of reckless endangerment in the first degree, and one charge of criminal possession of a weapon in the second degree.

In an order dated January 21, 1986, Criminal Term, granted defendant's motion to the extent that it dismissed all counts of the second indictment, other than the reckless endangerment charge, with leave to resubmit these charges to a third Grand Jury. Because the additional evidence before the second Grand Jury, as contrasted with that before the first Grand Jury, consisted largely of the testimony of these two youths, the court found that the integrity of the second Grand Jury was "severely undermined" by the apparently perjured testimony of the two youths (A and C).

The Court is now tasked to determine, whether the requirement of reasonable belief, as to the use of deadly force to warrant the justification of self-defense, includes only a subjective approach, which is the belief alone by the defendant as to the reasonableness of his conduct or the objective approach that the jury must look into if a reasonable person could have had these beliefs.

This Court, however, finds that the Criminal Term erred in dismissing the charges, specifically when it ruled that the prosecutor, in a supplemental charge elaborating upon the justification defense, had erroneously introduced an objective element into this defense by instructing the grand jurors to consider whether defendant's conduct was that of a "reasonable man in defendant’s situation".

Penal Law article 35 recognizes the defense of justification, which "permits the use of force under certain circumstances". One such set of circumstances pertains to the use of force in defense of a person, encompassing both self-defense and defense of a third person. Penal Law § 35.15(1) sets forth the general principles governing all such uses of force: "a person may * * * use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person" (emphasis added).

To Be Cont...

Grand Jury was "severely undermined"

September 16, 2014,

On Saturday afternoon, December 22, 1984, A, B , C, and D boarded an IRT express subway train in The Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, C and B, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.

Defendant boarded this subway train and sat down on a bench towards the rear section of the same car occupied by the four youths. Defendant was carrying an unlicensed .38 caliber pistol loaded with five rounds of ammunition. It appears from the evidence before the Grand Jury that A approached defendant, possibly with D beside him, and stated "give me five dollars". Neither A nor any of the other youths displayed a weapon. Defendant responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit A in the chest; the second struck D in the back; the third went through C's arm and into his left side; the fourth was fired at B, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor's cab. After the criminal defendant briefly surveyed the scene around him, he fired another shot at B, who then was sitting on the end bench of the car. The bullet entered the rear of B's side and severed his spinal cord.

The conductor went into the car where the shooting occurred and saw defendant sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparent taken cover, also lying on the floor. Defendant told the conductor that the four youths had tried to rob him.

While the conductor was aiding the youths, defendant headed towards the front of the car. The train had stopped just before next station and defendant went between two of the cars, jumped onto the tracks and fled. Police and ambulance crews arrived at the scene shortly thereafter. C and A initially listed in critical condition, have fully recovered. B remains paralyzed, and has suffered some degree of brain damage.

According to defendant's statement he was certain that none of the youths had a gun, he had a fear, based on prior experiences, of being "maimed".

Further, criminal defendant states that when he fired, his intention at that point was to "murder the four youths, to hurt them, to make them suffer as much as possible". Defendant noticed that one of the youth who had been standing still was now sitting on a bench and seemed unhurt. As defendant told the police, "I said 'you seem to be all right, here's another”, and he then fired the shot which severed B's spinal cord. Defendant added that "if I was a little more under self-control * * * I would have put the barrel against his forehead and fired." He also admitted that "if I had had more bullets, I would have shot them again, and again, and again."

To Be Cont...

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Ex Post Facto Clause of the United States Constitution...cont

September 16, 2014,

It is RV’s contention that the petition should be dismissed. He alleges that the provisions of Article 10 that allow a jury to determine if his non- sex crimes were "sexually motivated" violates the Ex Post Facto Clause of the United States Constitution.

In 2007, the Legislature, determining that some sex offenders have mental abnormalities that predispose them to engage in repeated sex offenses enacted The Sex Offender Management and Treatment Act. It provides that a person who is determined to be a detained sex offender with a mental abnormality would be subject to civil management after that person had served his or her criminal sentence. Civil management may take the form of either civil confinement in a secure treatment facility or strict and intensive supervision in accordance with MHL §§ 10.01 (b),(c),(d) and 10.07(f).

SOMTA provides that, within a specified time frame, either a Supreme or County Court judge shall hold a probable cause hearing to determine whether there is probable cause to believe that the criminal respondent is a detained sex offender requiring civil management.

If the criminal court determines that such probable cause exists, that matter is held over for trial before a twelve person jury, or a judge if the respondent in that case waives a trial by jury. The petitioner carries the burden of proving that the respondent in the matter is a detained sex offender who has a mental abnormality by clear and convincing evidence.

Pursuant to SOMTA, in order to be subject to civil management as set forth in MHL § 10.01, et seq., the person must have been convicted of a sex offense, as defined in Article 10, which includes, among others, a "sexually motivated felony. SOMTA also provides that certain persons who committed crimes before the enactment of SOMTA still may be subject to the civil management provisions of the statute.

New York is one of 18 other states and the District of Columbia and the federal government to have enacted civil confinement statutes such as SOMTA with the intent of addressing "a compelling need to protect residents of this state from sex criminals whose recidivism is predictable and uncontrollable." See, e.g., MHL § 10.01 (a), (b), (c), (e) and (f); see also, Governor's Program Bill 2007 Memorandum, Bill Jacket, L. 2007, ch. 7, at 10.

In enacting SOMTA, the Legislature noted that SOMTA establishes comprehensive reforms to enhance public safety by allowing the state to manage sex offenders upon the expiration of their criminal sentences through civil confinement or strict and intensive supervision.

According to the legislative history of SOMTA, there is a high rate of recidivism among certain sex offenders and certain sex offenders suffer from a mental abnormality that prevents them from controlling their sexual offending behavior. Unfortunately, despite these legislative decrees, there is scant empirical evidence to support the bases asserted by the Legislature in enacting SOMTA.

To Be Cont...

Ex Post Facto Clause of the United States Constitution

September 15, 2014,

This is a proceeding wherein the Attorney General of the State of New York filed a petition on 19 July 2010 contending that Criminal Respondent RV is a detained sex offender who has a mental abnormality as that term is defined in Article 10 of the New York State Mental Hygiene Law, § 10.03, such that Respondent should be confined or supervised by the Office of Mental Health once his prison sentence is completed.

On 7 February 2011, Respondent filed a motion to dismiss the petition contending that he was not convicted of any sex crime and that the provision in Article 10, Section 10.07(c) that would allow a jury to determine whether Respondent's robbery and attempted robbery convictions were "sexually motivated" is unconstitutional in that it violates the Ex Post Facto Clause of the United States Constitution. Respondent asserts that Section 10.07(c). The relevant provision of the criminal statute and its concomitant definitional paragraphs serve to retroactively transform a non- sex crime into a new "sexually motivated felony" and that it increases the punishment for the prior crime.

The court denies respondent’s motion to dismiss.

On 27 July 1995, RV pled guilty to two counts of Robbery in the First Degree, PL 160.15(3), one count of Attempted Robbery in the First Degree, PL 110/160.15(3), and one count of Escape in the First Degree, PL 205.15, each charged out of four separate dockets. On 15 September 1995, RV was sentenced on those separate dockets to three indeterminate terms of incarceration in a New York State Correctional Facility from 8 to 16 years, and one indeterminate term of incarceration of 2 to 4 years, with all sentences to run concurrently.

In July 2010, RV was incarcerated at Shawagunk Correctional Facility in Ulster County. He served almost 15 years of his concurrent sentences and was nearing the end of his term of imprisonment when the Attorney General filed the petition at issue on 19 July 2010.

In the petition, it is alleged that the attempted robbery and one of the first degree robbery crimes for which RV was convicted were sexually motivated and therefore RV is subject to the provisions of Article 10 of the Mental Hygiene Law. The Attorney General filed a petition seeking a determination that Respondent is a detained sex offender who has a mental abnormality such that he should be subject to Article 10 civil management.

A probable cause hearing was scheduled to be held on 26 July 2010. However, prior to the hearing, the court granted RV's motion to change venue from Ulster County to Bronx County.
On 15 October 2010, a probable cause hearing was held and the court found that there was probable cause to believe that RV is a detained sex offender requiring civil management pursuant to Mental Hygiene Law § 10.06(k).

To Be Cont...

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Paragraph Ten of the Bill of Particulars...cont

September 15, 2014,

Several states and numerous foreign nations have decriminalized prostitution without any indication of a concomitant decline in the vitality of the marital or family institution. The decriminalization of fornication in this state has not led to any reported damage to the family. The court can find no reason why commercial fornication should have a less innocuous effect on these social institutions. Thus, there is no empirical connection between prostitution, whether involving ordinary or deviate sexual intercourse, and the stability of the family. Therefore, the state cannot reasonably assert protection of marriage and the family as legitimate objectives for its regulation of prostitution. Society may find something offensive about having women perform sex for money. However offensive it may be, recreational commercial sex threatens no harm to the public health, safety or welfare and, therefore, may not be proscribed.

Finally, the criminal court observes that prostitution offends public sensibilities. Individual members of the public may indeed be offended by the public conduct associated with prostitution. They may be solicited on the street by prostitutes, embarrassed by the advances of streetwalkers, or find their path on the sidewalks or thoroughfares blocked. Indeed, such conduct may be a harm legitimately of interest to the state should it constitute public disorder. The court will not decide the question of who has a right to be on the public streets. The court, however, will point out that this public conduct is not caused in fact by the act of engaging in sexual relations for a fee. This harm, if any, is caused by the solicitation aspect of prostitution.

The public aspect of prostitution, solicitation, must be distinguished from its private aspect, the performance of consensual sexual relations for a fee in private. Street solicitation is a method of advertising the business of commercial sex. It is separable from the underlying activity. The prohibition of the offensive public conduct associated with the solicitation of prostitution may be a legitimate state objective. Since it has been demonstrated that only this public element of prostitution may make that conduct harmful, and that public conduct may be dealt with separately from the sexual conduct itself, it would be unreasonable for the state to completely proscribe private, sexual conduct in order to reach distinct public solicitation.
These public interests can be protected. Private, consensual sexual conduct between adults, whether or not performed for a fee, is protected by the right of privacy. If the state has a legitimate interest in curbing public disorder, it can and must accomplish this objective without depriving the individual of his or her right to engage in private, consensual, sexual relations. The constitutionally protected right of privacy makes it incumbent upon the state to implement its policy by more reasonable, less intrusive means.

For the reasons stated, the sexual conduct charge against criminal respondent is dismissed.

People v Moore, People v Doyle... ont

September 14, 2014,


The defendant cites People v Smith, which, in effect, held that if corroboration was required to convict defendant at the trial, such corroboration was also needed at a preliminary hearing.
The Court observed that the authorities cited by the court in the Smith case do not in fact support the conclusion reached in that case.

People v Romano dealt with the futility of ordering a second trial for rape, after the guilty verdict at the first trial had been reversed for lack of corroboration. People v Peetz quoted section 251 of the Code of Criminal Procedure to the effect that the Grand Jury should indict when all the evidence if unexplained or uncontradicted would, in the judgment of the Grand Jurors, warrant conviction by a trial jury.

The Criminal Procedure Law does not differ materially from the former practice code, the Code of Criminal Procedure, in requiring differing and progressively more onerous standards of proof at the three stages of the judicial process following a felony arrest--hearing, Grand Jury proceedings and trial.

To sustain a conviction, the People must establish the defendant's guilt beyond a reasonable doubt. The conviction must be based 'upon trial evidence which is legally sufficient and which establishes beyond a reasonable doubt every element of such offense and the defendant's commission thereof under Crim.Proc.Law, sec. 70.20.

Under section 389 of the predecessor statute, the Code of Criminal Procedure, the defendant was presumed to be innocent until the contrary was proved and was entitled to an acquittal where a reasonable doubt as to his guilt was satisfactorily shown.

The law does not require the same degree of proof to hold a defendant for action of the Grand Jury as is demanded for conviction; however, the proof must be sufficient on its face to sustain conviction of the defendant akin to People v Eckert and People v Donahue.

The court notes that the new standard for indictments contained in section 190.65 of the Criminal Procedure Law permits indictment of a person when the evidence before the Grand Jury is legally sufficient to establish that the person committed an offense and competent and admissible evidence before it provides reasonable cause to believe such person committed the offense. Under the former statute, sec. 251 of the Code of Criminal Procedure, the Grand Jury decision to indict was based on the concept that when all the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.


To Be Cont...