CPL 60.42..cont

August 31, 2014,

Although we find that CPL 60.42 is constitutional, we are constrained to reverse the judgments because the evidence offered by criminal defendants, but excluded by the trial court, was of substantial probative value and was not offered primarily to demean or harass the victim. Such evidence directly involved not only the complainant's credibility and her mental and emotional condition, but, to a marked degree, her ability to perceive and recall past events. The relevance of the evidence therefore clearly outweighed its possible prejudicial implications. The basic essence of a fair trial is that a defendant be permitted "to probe into the influence of possible bias in the testimony of a crucial identification witness". If the defense be not afforded the full and proper right of confrontation, it is difficult indeed, if not impossible, to determine the truth; and a trial, as we all so often say, is but a search for the truth.

Pursuant to the exception set forth in subdivision 5 of CPL 60.42, the defendants made an offer of proof at the outset of the trial. The offer proposed the admission of evidence of: three similar false rape complaints previously made by the complainant; certain records of South Oaks Hospital prepared in the regular course of business while complainant was a patient at that hospital from April 11, 1972 to May 22, 1972; statements by three males, two 18 years of age and one 31 years of age, that, inter alia, in sexual situations with complainant she had refused to let them touch her breasts; a statement by an 18-year-old male that he had seen complainant's father brutally beat her with his naked fists; a photograph in "Mixer" magazine allegedly of complainant, which accompanied a criminal solicitation for women to participate in multiple and unusual sorts of sexual activity; and the minutes of a preliminary hearing held on May 12, 1975.

The trial court held a brief hearing out of the presence of the jury and, at the request of defense counsel, who were hesitant to open their files to the prosecution, made an in camera examination of the proffered documentation and concluded that such evidence was totally inadmissible. At the time this determination was made the trial court was, of course, unaware of the theory of the defense and could not have had any knowledge of the many inconsistencies which would subsequently surface in the complainant's testimony. The conclusion is therefore valid that the trial court's ruling at that early stage was eminently fair and proper. However, as the trial progressed and both the theory of the defense and the complainant's conflicting versions of the event were revealed in the glare of searching cross-examination, we conclude, fortified as we are by the perfect vision of hindsight, that the trial court should have reconsidered and reversed its earlier ruling.

It was partially revealed on cross-examination, and it is documented by the transcript, that complainant lied when she testified at a preliminary hearing on May 12, 1975. She there swore under oath that she had been a virgin prior to the alleged rape and that she had never been treated or institutionalized for a mental illness.

As the defense brought these inconsistencies between the complainant's trial testimony and her previous statements to light the theory of the defense became apparent. The defendants contended that the complainant either instigated or consented to any sexual activity which occurred. They alleged that the rape complaint was the result of the humiliation she had suffered and the resultant anger and fury that possessed her when water balloons, purposely placed by the complainant in her bra, fell and burst upon the floor to the taunting, scornful and infuriating laughter of the defendants. As incredible as this defense may appear, the evidence offered by defendants, but not admitted by the trial court, tends to support defendants' position at least to the extent that the issue should have been fully explored and then submitted to the jury.

Although the point is moot in the light of our reversal of the convictions, it should be noted that there was no inconsistency in the verdict.

The defendants were acquitted of the crimes of rape and sodomy and convicted of the crimes of sexual abuse and assault. Based upon the evidence at the trial, the guilty verdict was supported by the record and there is no question that an acquittal on rape and sodomy counts does not preclude a conviction for sex abuse. Although complainant's testimony, standing alone, supported a conviction on all three counts, the hospital records, which revealed the absence of semen and no damage to complainant's anal area, provide a rationale for the verdict. The lack of medical corroboration of the crimes of rape and sodomy and the testimony that the complainant was drugged during the events sufficiently explain the verdict.

Defendants also argue that the count charging sex abuse in the first degree must be dismissed, because the indictment, without further elaboration, merely sets forth the statutory definition of the crime. This contention has been urged for the first time approximately eight months after oral argument of this appeal and just prior to the rendition of our determination. We therefore refrain from passing upon this contention, without prejudice to the raising of this point by any of the defendants upon the remand to Criminal Term.

There is one additional point raised on appeal which merits discussion.

At the sentencing the court took into account the defendants' refusal to discuss the case with the Probation Department. The court was informed that defendants had refused to discuss the matter upon advice of counsel since, if successful on appeal, such statements might be admissible at a retrial. The sentencing court stated: "I don't accept that because any statement your client may make to probation in the event that you were successful on an appeal would not, under any circumstances, be admissible on a retrial of this indictment." Although we do not consider an indeterminate sentence of five years to be necessarily excessive, the importance that the sentencing court attached to defendants' refusal to speak with the Probation Department is demonstrated by the court's putting over of the sentencing of defendant Buckley after he indicated a willingness to speak with that department. The test for determining the voluntariness, and therefore admissibility, of inculpatory statements is whether such statements were " 'extracted by any sort of threats or violence' ". Under this test, any statements made to the Probation Department would clearly be inadmissible at the retrial on the People's direct case because there is certainly an "implied promise" that candor with the Probation Department may result in a recommendation of leniency. It is unclear, under the rule enunciated that such statements could be admitted into evidence for impeachment purposes. Albeit cautious, it was proper for the defendants, upon advice of counsel, to refuse to speak with the Probation Department.

The two judgments of the Supreme Court, Queens County, rendered December 9, 1975 and judgment of the same court, rendered January 6, 1976, reversed, on the law, and new trial ordered. The findings of fact are affirmed.

Accordingly, the court held that the judgments appealed from are reversed, on the law, and a new trial is ordered.

CPL 60.42..cont

August 31, 2014,

Although we find that CPL 60.42 is constitutional, we are constrained to reverse the judgments because the evidence offered by criminal defendants, but excluded by the trial court, was of substantial probative value and was not offered primarily to demean or harass the victim. Such evidence directly involved not only the complainant's credibility and her mental and emotional condition, but, to a marked degree, her ability to perceive and recall past events. The relevance of the evidence therefore clearly outweighed its possible prejudicial implications. The basic essence of a fair trial is that a defendant be permitted "to probe into the influence of possible bias in the testimony of a crucial identification witness". If the defense be not afforded the full and proper right of confrontation, it is difficult indeed, if not impossible, to determine the truth; and a trial, as we all so often say, is but a search for the truth.

Pursuant to the exception set forth in subdivision 5 of CPL 60.42, the defendants made an offer of proof at the outset of the trial. The offer proposed the admission of evidence of: three similar false rape complaints previously made by the complainant; certain records of South Oaks Hospital prepared in the regular course of business while complainant was a patient at that hospital from April 11, 1972 to May 22, 1972; statements by three males, two 18 years of age and one 31 years of age, that, inter alia, in sexual situations with complainant she had refused to let them touch her breasts; a statement by an 18-year-old male that he had seen complainant's father brutally beat her with his naked fists; a photograph in "Mixer" magazine allegedly of complainant, which accompanied a criminal solicitation for women to participate in multiple and unusual sorts of sexual activity; and the minutes of a preliminary hearing held on May 12, 1975.

The trial court held a brief hearing out of the presence of the jury and, at the request of defense counsel, who were hesitant to open their files to the prosecution, made an in camera examination of the proffered documentation and concluded that such evidence was totally inadmissible. At the time this determination was made the trial court was, of course, unaware of the theory of the defense and could not have had any knowledge of the many inconsistencies which would subsequently surface in the complainant's testimony. The conclusion is therefore valid that the trial court's ruling at that early stage was eminently fair and proper. However, as the trial progressed and both the theory of the defense and the complainant's conflicting versions of the event were revealed in the glare of searching cross-examination, we conclude, fortified as we are by the perfect vision of hindsight, that the trial court should have reconsidered and reversed its earlier ruling.

It was partially revealed on cross-examination, and it is documented by the transcript, that complainant lied when she testified at a preliminary hearing on May 12, 1975. She there swore under oath that she had been a virgin prior to the alleged rape and that she had never been treated or institutionalized for a mental illness.

As the defense brought these inconsistencies between the complainant's trial testimony and her previous statements to light the theory of the defense became apparent. The defendants contended that the complainant either instigated or consented to any sexual activity which occurred. They alleged that the rape complaint was the result of the humiliation she had suffered and the resultant anger and fury that possessed her when water balloons, purposely placed by the complainant in her bra, fell and burst upon the floor to the taunting, scornful and infuriating laughter of the defendants. As incredible as this defense may appear, the evidence offered by defendants, but not admitted by the trial court, tends to support defendants' position at least to the extent that the issue should have been fully explored and then submitted to the jury.

Although the point is moot in the light of our reversal of the convictions, it should be noted that there was no inconsistency in the verdict.

The defendants were acquitted of the crimes of rape and sodomy and convicted of the crimes of sexual abuse and assault. Based upon the evidence at the trial, the guilty verdict was supported by the record and there is no question that an acquittal on rape and sodomy counts does not preclude a conviction for sex abuse. Although complainant's testimony, standing alone, supported a conviction on all three counts, the hospital records, which revealed the absence of semen and no damage to complainant's anal area, provide a rationale for the verdict. The lack of medical corroboration of the crimes of rape and sodomy and the testimony that the complainant was drugged during the events sufficiently explain the verdict.

Defendants also argue that the count charging sex abuse in the first degree must be dismissed, because the indictment, without further elaboration, merely sets forth the statutory definition of the crime. This contention has been urged for the first time approximately eight months after oral argument of this appeal and just prior to the rendition of our determination. We therefore refrain from passing upon this contention, without prejudice to the raising of this point by any of the defendants upon the remand to Criminal Term.

There is one additional point raised on appeal which merits discussion.

At the sentencing the court took into account the defendants' refusal to discuss the case with the Probation Department. The court was informed that defendants had refused to discuss the matter upon advice of counsel since, if successful on appeal, such statements might be admissible at a retrial. The sentencing court stated: "I don't accept that because any statement your client may make to probation in the event that you were successful on an appeal would not, under any circumstances, be admissible on a retrial of this indictment." Although we do not consider an indeterminate sentence of five years to be necessarily excessive, the importance that the sentencing court attached to defendants' refusal to speak with the Probation Department is demonstrated by the court's putting over of the sentencing of defendant Buckley after he indicated a willingness to speak with that department. The test for determining the voluntariness, and therefore admissibility, of inculpatory statements is whether such statements were " 'extracted by any sort of threats or violence' ". Under this test, any statements made to the Probation Department would clearly be inadmissible at the retrial on the People's direct case because there is certainly an "implied promise" that candor with the Probation Department may result in a recommendation of leniency. It is unclear, under the rule enunciated that such statements could be admitted into evidence for impeachment purposes. Albeit cautious, it was proper for the defendants, upon advice of counsel, to refuse to speak with the Probation Department.

The two judgments of the Supreme Court, Queens County, rendered December 9, 1975 and judgment of the same court, rendered January 6, 1976, reversed, on the law, and new trial ordered. The findings of fact are affirmed.

Accordingly, the court held that the judgments appealed from are reversed, on the law, and a new trial is ordered.

Prostitution is a class B misdemeanor...cont

August 30, 2014,

In approving the use of declaratory judgment in the present situation, it is incumbent upon this court to caution that this doctrine is to be used carefully and wisely. The extent to which this relief may be invoked remains to be developed.

Having concluded that declaratory relief was a proper remedy under the circumstances here, the merits of the decision below must be addressed. As noted, Judge concluded that prostitution is a "serious" crime and thereby comes within the scope of the Sixth Amendment's guarantee of a trial by jury. In so holding, he acknowledged the relatively minimal sentence, but reasoned that the length of incarceration was only one of several factors that may be considered.

Respondents devote an extensive portion of their argument to tracing the history of prostitution laws; the legal, moral, and psychological implications of prostitution; and the importance private citizens and public officials place on eradicating prostitution. The effect of respondents' argument, however, would be to allow each Judge to make a subjective decision on the seriousness of prostitution as an offense requiring a jury trial.

The analysis adopted by respondent’s stumbles at its threshold. Although earlier cases may have considered various factors of a sex crimes, recent Supreme Court decisions have emphasized the length of sentence to the exclusion of virtually everything else. The penalty is deemed of major relevance, a gauge of the locality's social and ethical judgments on the heinousness of the offense. "In ordinary criminal prosecutions, the severity of the penalty authorized, not the penalty actually imposed, is the relevant criterion. In such cases, the Legislature has included within the definition of the crime itself a judgment about the seriousness of the offense".

Under this standard, it must be concluded that, as applied to criminal prostitution charges, CPL 340.40 (subd. 2) does not violate the Sixth Amendment. Prostitution is a class B misdemeanor (Penal Law, § 230.00), which is punishable by a maximum imprisonment of three months.

Consequently, prostitution is a "petty" offense within the meaning of the Sixth Amendment and, hence, there is no right to a jury trial.

It is worth commenting on the reasons why a subjective standard is not employed. The overriding problem would be the lack of predictability and consistency in determining when a jury trial would be granted. Evaluation of an offense's "seriousness" could vary from county to county, town to town, or even court to court. As a result, persons charged with identical offenses would find that their right to a jury depended only on the Judge before whom they happened to appear, not on the offense charged.

A second concern is that, in establishing sentences, the Legislature must be presumed to have weighed public opinion and history, and to have been aware of the civil implications of conviction. Indeed, this presumption implicitly underlies the Supreme Court's emphasis on sentence length as the indicator of a crime's seriousness. To allow a Judge to weigh these same criteria and reach a different conclusion as to a crime's seriousness would be to permit an improper usurpation of the legislative function.

As discussed, it is an abuse of discretion for a court to entertain an action for declaratory judgment when there is pending between the parties an action that will fully dispose of the controversy. This error is compounded when the controversy has already been decided. Thus, it was improper for Supreme Court to have heard the action as against respondents, the defendants in the criminal action.

Correction Law §§ 168-l and 168-n...cont

August 30, 2014,

The People’s position is simply that the Criminal Court did not have sufficient information to make the determination when it was made and there is no prejudice to the defendant if the court were to reconsider its determination. However, the court emphasized that it did have authority to make the modification at that time. Thereafter, the court adjourned the matter to enable defendant to conduct further discovery pursuant to Correction Law § 168-n (3).

The defendant argued that the documents furnished to the court constituted insufficient proof to support a mandatory override based on a prior sexual felony conviction. In response, the People argued that defendant had committed a residential burglary, which as a matter of law constitutes a violent felony offense. Accepting the People's argument, the court reconfigured the risk assessment document to assess "30 points under question No. 9, under criminal history. After considering whether defendant should be categorized as a level three risk or whether there should be a downward departure, the court concluded:

"I don't intend to depart from the presumptive level which I now find to be a level 3 sex offender based upon all of the information we considered before together with the 1989 affidavit of the burglary victim in support of an application for a warrant detailing certain sexual conduct during the burglary by this defendant."

The court regarded that as additional evidence that defendant's prior felony conviction was violent, involving burglary of a dwelling and sexual misconduct. In accordance with its new finding, the court tabulated defendant's score at 120 and found him to be a level three risk. An "Amended Order" was entered accordingly.

Defendant contends that the court had no authority to "modify" its prior risk level assessment and, in any event, the People did not establish the facts underlying defendant's out-of-state conviction by clear and convincing evidence.

The court is faced with the issue of whether it had statutory or inherent authority to revisit its prior determination based on an asserted error of law or fact.

The court concludes that it does.

Pursuant to CPLR 2221, the court had statutory authority to grant reargument and renewal. It was ruled in People v Kearns, People v Hernandez, People v Cash, People v Sumpter, People v Salaam, Matter of Vandover v Czaika and Matter of New York Satae Bd. Examiners of Sex Crimes Offenders v Ransom that proceedings to review SORA risk level determinations made under these circumstances have been treated as civil, not criminal, in nature.

The Legislature recently explicitly incorporated CPLR articles 55, 56, and 57 into proceedings conducted pursuant to SORA, thereby granting either party a right to take a civil appeal from a risk level determination under Correction Law § 168-d [3]; § 168-k [2]; § 168-n [3]; § 168-o [1]-[3]. Those CPLR articles refer to the granting or denial of motions for reargument or renewal, the appealability or nonappealability of such orders as of right, the reviewability of such orders on appeal from other orders, and the effect of such motions and orders upon related appeals.

To Be Cont...

Order of Protection should not have been issued in this case

August 30, 2014,

Defendant and complainant are husband and wife. Immediately prior to his arrest, defendant and his wife were staying in separate cooperative apartments, each jointly owned by them, in the same apartment building in Manhattan. The larger of the two apartments was the couple's marital home, while the smaller served as the wife's office. As a consequence of severe marital conflict between them, the wife was temporarily sleeping in her office, but had access to the larger apartment during the day. The defendant husband continued to occupy and sleep in the larger apartment.

A New York Criminal Lawyer said that, defendant was arrested on June 24, 1988 and charged with Assault in the Third Degree, and with Harassment, on the complaint of his wife. According to the June 24 complaint of Police Officer corroborated by the complainant wife on the same day, defendant, with intent to cause physical injury and to harass and annoy his wife, had punched her in the face and knocked out one of her teeth. The alleged assault and harassment occurred after the wife had returned to sleep in the larger apartment and refused to let the husband in.

A New York Domestic Violence Lawyer said that, at his arraignment on June 24, 1988, defendant was represented by counsel, and with the consent of the People was released on his own recognizance. At the arraignment, the People requested, and the court issued, a Temporary Order of Protection, effective until July 17, 1988, unless further extended by the court. No argument was heard, or testimony presented, either in support of or in opposition to the issuance of the TOP. The Temporary Order of Protection, issued on the officially prescribed form used for this purpose in the Criminal Court for the City of New York, directed defendant as follows: (a) to stay away from the home, school, business or place of employment of the complainant; (c) to abstain from offensive conduct against the complainant; (d) to refrain from acts of omission or commission that tend to make the home not a proper place for the complainant. The effect of this Temporary Order of Protection was to exclude the defendant from both of the couple's apartments, since one was arguably the complainant's home and the other her office.

On June 26, 1988, two days after defendant's arrest, complainant informed the police that defendant had threatened her with violence over the telephone and that she had a Temporary Order of Protection. The police sought to arrest the defendant for violation of the TOP, but apparently, following negotiations with defendant's counsel, they agreed to desist while defendant litigated the legality of such an arrest and of the underlying order of protection.
On July 13, 1988, defendant and his counsel appeared in Part AP 3 of this court and orally requested that the TOP be modified to allow the defendant access to one of the two apartments. The application was denied with leave to renew in writing. A new TOP was issued, without a hearing, on the same terms as previously, and made effective until August 1, 1988, unless extended by the Court. On July 15, 1988, by order to show cause returnable on July 26, 1988, defendant moved to vacate the TOP as based on insufficient evidence and issued in violation of due process of law. Additionally, and alternatively, defendant moved for a hearing pursuant to CPL 510.20 to vacate the TOP as a condition of his recognizance. While this motion was pending, on July 18, 1988, defendant sought and was denied review of the TOP in the Supreme Court, New York County, on the ground that CPL 530.30 did not authorize such review.

On July 20, 1988, the defendant's written motion was disposed of by stipulation. The People and the defendant agreed in writing that a hearing would be held to determine defendant's claim "that an Order of Protection should not have been issued in this case and that the police do not have probable cause to arrest me [the defendant] for violation of that Order of Protection." On July 26, 1988 the stipulation was approved by the presiding judge and the hearing was scheduled for August 1, 1988.

To Be Cont...

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RCNY, Title 38, and Chapter 12...cont

August 29, 2014,


The time for the Property Clerk to commence a forfeiture action was established in accordance with Mc v. R and subsequent regulations codified in RCNY, Title 38, and Chapter 12. In Mc v. R the Second Circuit held that former section 435-4.0, now 14-140, of the Administrative Code of the City of New York, relating to the duties and powers of the Property Clerk, violated due process as applied to persons from whose possession money or property, other than contraband, has been taken or obtained, though such money or property was not related to any criminal proceeding, or, if it was so related such criminal proceeding had been terminated, or if the money or property had been needed as evidence in the criminal proceeding, it was no longer needed for that purpose. On remand from the Second Circuit the District Court construed the Second Circuit's decision as requiring that in the circumstances described in that decision, the property clerk must initiate forfeiture or other proceedings to justify the continued detention of property.

Reflecting the concerns in Mc v. R the RCNY distinguishes between property seized as arrest evidence, which may be needed to prosecute a crime, and other property. Specifically, under 38 RCNY § 12-36(a), If a timely demand is made for the return of the property before the forfeiture proceeding is instituted, such proceeding shall be brought no later than (I) in the case of arrest evidence, 25 days after the claimant provides the property clerk with a district attorneys' release, and (ii) in all other cases, as a district attorneys' release is not required, within 25 days after the date of the demand.

The 38 RCNY § 12-31 defines the term arrest evidence to mean: property taken from the person or possession of an individual prior to, simultaneous with, or subsequent to an arrest because of its relation to the matter for which the person had been arrested. No property shall be deemed arrest evidence prior to the person's arrest. No property taken from a person and held by the Police Property Clerk merely for safekeeping shall be deemed arrest evidence.

Under 38 RCNY §12-35(d) where a timely demand for arrest evidence is made without a district attorney's release, the stolen property clerk may treat the demand as an inquiry and require a claimant within 270 days of the inquiry to provide a district attorney's release or a supervising attorney's release. Respondent’s argument that their time to seek forfeiture of the subject property has not began to run centers on Petitioner' purported failure to comply with this provision.

On the other hand, under 38 RCNY § 12-32(e)(3), property other than arrest evidence is defined as: non-contraband property taken from an arrestee merely for safekeeping or taken from the person or individual prior to or simultaneously with or subsequent to an arrest which is unrelated to the matter for which the individual was arrested. Following receipt of demand for such property, the property clerk may return the property or bring a forfeiture proceeding within 25 days of the demand.

In this case, the classification of the subject property was changed from investigatory to arrest evidence seven days after Petitioner demanded the return of the subject property, and after the termination of criminal proceedings against Petitioner, who was sentenced in May 2009. Notably, respondents provide no explanation for the change in classification of the subject property.


To Be Cont....

CPL 60.42...cont

August 29, 2014,

In this case, defendant is statutorily determined to be a sex offender in New York, so no comparison of the statutes is required. That is because the provision that applies to his conviction is section 168-a (2) (d) (ii), not section 168-a (1) (d) (i). The applicable provision defines the crime for which the criminal defendant was convicted as a sex offense because he was convicted of a felony in Vermont for which he is required to register as a sex offender in Vermont. As the statute clearly dictates that this defendant is a sex offender, it also specifically dictates that it is the Board who has the power to determine whether he must register. Because the court does not have jurisdiction to review the Board's determination under these circumstances, the criminal defendant's motion to dismiss on this ground is denied.

Defendant's motion to dismiss on constitutional grounds is likewise denied. Defendant contends that the applicable SORA provision which requires him to register as a sex crimes offender after he established residence in New York violates the Equal Protection Clause because it treats out-of-state and New York residents differently.

The applicable provision does not violate the Equal Protection Clause. States have a legitimate interest in requiring offenders who commit registerable offenses in other jurisdictions to register in their new state of residence. If provisions like Correction Law § 168-a (2) (d) (ii) did not exist, an offender could avoid sex offender registration requirements simply by moving his state of residence, thereby frustrating the purpose behind sex offender registration laws.
In any event, the applicable SORA provision does not discriminate between out-of-state and New York residents. The initial question, prior to determining which type of constitutional analysis applies, is whether, under otherwise identical circumstances, the SORA would treat a Vermont resident who establishes residence in New York differently than a New York resident. Contrary to defendant's argument, the analysis is therefore not whether a Vermont resident who commits a crime in Vermont and then establishes residence in New York would be treated differently than a New York resident who commits that same crime in New York. Rather, it is whether a Vermont resident who commits a crime in Vermont and then establishes residence in New York would be treated differently than a New York resident who commits that same crime in Vermont. The answer is that the Vermont resident and New York resident would be treated no differently under the SORA. Correction Law § 168-a (2) (d) (ii) defines a sex offender as a person who is convicted of a "felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred." That provision is therefore clear that if a New York resident travels to Vermont where he is convicted of a felony for which he is required to register in Vermont, the SORA defines him as a sex offender who must register in New York. Hence, a Vermont resident who moves to New York after he is convicted of a registerable felony in Vermont is treated the same as a New York resident who is convicted of a registerable felony in Vermont. As defendant would have been required to register in New York had he been a continuing resident of New York when he was convicted of the Vermont felony, he was not discriminated against based upon his state of residency. Nor does the provision in any way impede his right to travel. His motion to dismiss on equal protection grounds is therefore denied.

For the same reasons, defendant's motion to dismiss under the Privileges and Immunities Clause is denied.

Accordingly, the motion is denied in its entirety.

United States v. Salerno...cont

August 29, 2014,


The Court thus finds, as did the Southern District of New York in MHLS–I and MHLS–II, that a substantial liberty interest is implicated by the operation of the mandatory confinement provisions of MHL § 10.06(k).

Accordingly, Respondent is entitled to due process as he faces loss of his liberty via the mandatory pre-trial detention scheme of MHL § 10.06(k) pending the completion of a sex crimes offender civil management trial.

The Court finds that, having weighed the three factors set forth in Mathews, MHL § 10.06(k) violates Respondent's due process rights.

As to the first Mathews factor—the private interest that will be affected by the official action-the Court finds that Respondent has a strong liberty interest that is substantially affected by the mandatory pre-trial confinement scheme of MHL § 10.06(k).

The second Mathews factor requires the Criminal Court to examine the risk of erroneous deprivation of the interest at stake as a result of the State's procedures and the probable value, if any, of additional or substitute safeguards with respect to that interest. In the case at bar, the Court finds that the risk of an erroneous deprivation of Respondent's liberty under Article 10's pre-trial detention scheme is great.

MHL § 10.06(k) mandates detention after a finding of probable cause until completion of the trial. Supreme Court precedent, set forth in Salerno, instructs that a person can be confined pending trial only if, along with a finding of probable cause, the State proves by clear and convincing evidence that there are no conditions of release that can reasonably assure the safety of the community or any person, before such person may be detained pending trial.
Here, no such finding of dangerousness or lesser conditions than confinement is required by, or even permitted by, MHL § 10.06(k). Even if such finding were required by the statute, no such finding can be made here.

Due process cannot countenance a statute that mandates such a choice.

The court concludes that the government interest in protecting the public as set forth in the Legislative findings of MHL § 10.01 et seq. is not effectuated by the broad mandatory detention provisions of MHL § 10.06(k), and there is significant fiscal value and very small burden to the State if it were to modify the statute to safeguard the pre-trial detention due process rights of respondents.

The Court finds that the mandatory confinement provisions of MHL § 10.06(k) are unconstitutional in that they lack the requisite due process protections mandated by Salerno and even if the court were to construe the statute to require the findings specified in Salerno, no such findings could be made in this case.

As the Court has no power to re-write the statute to allow Respondent to be released under supervision and treatment pending trial, the Court declares those provisions of MHL § 10.06(k) unconstitutional.

Based on these reasons, the court has determined that the aforementioned prostitution provisions of MHL § 10.06(k) are unconstitutional. Accordingly, the Court is constrained to order Respondent's release. Notwithstanding the foregoing, the Court stays this Order for 10 days to allow the parties to seek any appropriate relief they deem necessary.

Moreover, although the Court is not statutorily empowered to order pre-trial supervision and treatment of Respondent, the Court notes that the parties may agree to any such terms and conditions, pending trial, as they deem fit.

Miranda warnings...cont

August 28, 2014,


When a criminal defendant is in police custody and after the Miranda warnings have been given to him, a heavy burden is cast upon a State to establish not only an understanding of his constitutional rights, but also that his election to waive them was the result of the voluntary exercise of his own mental processes without the use of any outside influences or pressures which may tend to exert any leverage upon his ultimate decision.

Inasmuch as it is a well-settled rule of law "that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights", it becomes a natural corollary to such rule that courts are required to scrutinize such waivers for any signs of unfairness, and for an assurance that they are not the product of any overwhelming and unbalancing inducements.
The defendant's inculpatory statement, coming immediately after the Officer's admonition, was the result of an impermissible intrusion on the criminal defendant's right to make an unpressured and uninfluenced election whether he should or should not waive his constitutional rights.

The rights therein sought to be protected, involve not only a statement of the defendant's rights, but, most vital to him, a comprehension of the advices coupled with a reasonable opportunity on his part to consider the consequences of the options offered to him and to make his choice whether or not to waive his rights without any intervening pressure, cajoling or implied threats by his interrogator.

The deficiency was created here by the inappropriate timing of the police officer's remark in that it was made after the defendant indicated his comprehension of the warnings but before he had made an election to waive. The only inference from such conduct by the interrogator is that the remark was made for the purpose of introducing "a compelling influence" to induce a waiver, which is contrary to the purpose of the Miranda guidelines.

It is not to be suggested that at some point in a police interrogation, under certain circumstances, it would be inappropriate for the interrogating officer to suggest the use of police testing techniques. However, it should be sharply noted that, the defendant had been given the Miranda warnings and had, in fact already waived his rights before the voice stress test was mentioned by the police interrogator.

Notwithstanding that the suggestion to submit the defendant to police detection techniques may be permissible after a waiver of constitutional rights by the defendant, it may not, however, in the very process designed to protect one's constitutional rights, be used as a device to overbear, pressure and persuade the defendant to relinquish those rights.
Here, however, we are concerned with, not a police technique to evoke a statement after a waiver has been properly effectuated, but, rather, with an intrusion upon the very foundation of the defendant's constitutional right to make a free choice as to whether or not he should waive in the first instance. This phase of the constitutional process requires an atmosphere geared to the protection of constitutional rights rather than a concern with overcoming such rights. Domestic violence and Burglary were not involvedl

Particularly do the facts militate against a waiver here when no matter how innocuous the police prodding may have appeared, such urging by-passed any expression of waiver and resulted in a statement devoid of surrounding circumstances from which any inference of relinquishment of such constitutional rights could be inferred.

"An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecutor's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated."

Hence, it is apparent that the law, at least in this Department, is precisely as our separately concurring colleague would have it, viz., that "where a defendant in custody has been fully informed of his rights and has indicated that he understands them, his subsequent voluntary decision to speak to the police without requesting an attorney may, in all but the most unusual circumstances, be held to constitute a valid waiver." In the case at bar, therefore, the defendant's roof-top admission was not necessarily excludable solely because it was not preceded by an express waiver of his constitutional rights. That fact notwithstanding, the admission must be suppressed because, under the totality of the circumstances herein, the defendant was not shown to have waived his rights beyond a reasonable doubt. The record here does not spell out a free and voluntary waiver, either express or implied, of the defendant's constitutional rights.

Judgment of the Supreme Court, Queens County, rendered October 5, 1978, reversed, on the law and the facts, motion to suppress granted and indictment dismissed.

This case is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion, pursuant to CPL 160.50.

Sex Offenders of the State of New York...cont

August 28, 2014,

Because SORA does not define "conviction," the court in Matter of Smith found it appropriate to look to CPL 1.20 (13), which provides that conviction includes “the entry of a plea of guilty” to an accusatory instrument, does not recognize nolo contendere pleas as was also held in People v Daiboch. Nevertheless, the fact that a criminal defendant does not technically admit guilt in a nolo contendere plea has not prevented New York from recognizing that a nolo contendere plea from another jurisdiction constitutes a conviction for sentencing a defendant as a second felony criminal offender.

The court holds that a nolo contendere plea is generally deemed a conviction. There is also nothing unique about SORA that suggests that a nolo contendere plea should be treated differently for purposes of SORA registration. Accordingly, a nolo contendere plea is sufficiently akin to a guilty plea to be deemed a conviction for purposes of CPL 1.20(13) and thus may be considered a conviction for purposes of SORA.

In the case at bar, the petitioner's nolo contendere plea constitutes the conviction and the fact that adjudication was withheld has no bearing on whether the Florida crime constitutes a conviction for purposes of SORA akin to People v Mitch and United States v Hardeman. Courts have come to similar conclusions with respect to use of an adjudication withheld for purposes of a parole violation as in Cassarino v New York State Div. Parole and Lesnowski v Von Holden.
The court also finds that there is nothing fundamentally unfair about deeming plaintiff's Florida proceeding a conviction for purposes of SORA, since, as plaintiff concedes, plaintiff's nolo contendere plea with adjudication withheld for violating Florida Statutes § 800.04(3) constitutes a conviction for purposes of Florida's sex registration requirements, and required him to register as a sex offender in Florida. Indeed, Florida courts, as in Montgomery v State, State v Mason and Smith v State, have held that a nolo contendere plea with adjudication withheld is generally considered a conviction for purposes of determining a defendant's sentence for subsequent convictions.

Petitioner contends that the nolo contendere plea with adjudication withheld should be considered like a youthful offender adjudication. The court finds that this ignores the fact that Florida has its own youthful offender statute under Florida Statutes Chapter 958 and that petitioner was not adjudicated as a youthful offender under that statute. Moreover, even if petitioner had been adjudicated a youthful offender under Florida law, such treatment would not have affected petitioner's obligation to register as a sexual offender in Florida. Since a Florida youthful offender would have to register as a sex offender in Florida, the proceeding would be considered a conviction under SORA, even though a New York youthful offender would not have to register as held in People v Kuey and People v Coolbaugh.

Petitioner also argues that registration should not be required here because there is no New York felony sex offense that is equivalent to Florida Statutes § 800.04(3). Assuming this to be correct, Correction Law § 168(2)(d)(ii) is intended to require registration for out of state sex offender felonies that have no New York equivalent. This purpose is evident from the legislative history of SORA. When SORA was first enacted, the only out of state convictions that required registration in New York were felonies with the same essential elements as a New York requiring registration.

The court finds it clear that the legislature added what is now Correction Law § 168(2)(d)(ii) in order to include offenses from other jurisdictions that do not have the same essential elements as New York sex offenses as was held in People v Kennedy.

Under these circumstances, and in light of the non-punitive, remedial public safety purpose underlying SORA, the lack of an equivalent New York felony conviction is not grounds for exempting petitioner from the registration requirement akin to Matter of North v Board of Examiners of Sex Offenders.

The court finds that petitioner has failed to demonstrate that his Florida nolo contendere plea with adjudication withheld may not be considered a conviction under SORA. In the absence of any other grounds for annulling or vacating the Board's determination that he is required to register as a sex crimes offender under SORA, and in the absence of any factual issues, the petition must be dismissed.

Sex Offenders of the State of New York

August 27, 2014,

This is a proceeding wherein the petitioner, DK, petitions for an order and judgment, pursuant to CPLR 7801-7806, annulling and vacating the 25 January 2011 final determination of respondent Board of Examiners of Criminal Sex Offenders of the State of New York on the grounds the determination was arbitrary and capricious, was affected by error of law and involved an abuse of discretion.

The court dismisses the petition.

The petitioner claims that his Florida nolo contendere plea to the crime of indecent assault under former Fla Stat § 800.04[3] for which the court withheld adjudication and entered an order of supervision placing petitioner on sexual offender probation for four years, does not constitute a conviction for purposes of the Sex Offender Registration Act and that, as such, the Board erred in determining that petitioner was required to register under SORA.

The undisputed facts enumerate that by an April 1998 Information, the State of Florida charged, on October 1, 1997, the petitioner, who was 18 at the time, for violating former Florida Statutes § 800.04(3) by committing an act of Sexual Battery as defined in Florida Statutes § 794.011(1)(h) upon a child under the age of 16. On 4 June 1999, petitioner entered a plea of nolo contendere to the charge for which the court withheld adjudication, and the court entered an "order of supervision" placing petitioner on "sexual offender probation" for four years. In March 2001, the Florida court granted a defense motion to terminate petitioner's probation and petitioner was thereafter required to register as a sex offender under Florida Statutes § 943.0435, Florida's version of SORA.

Prior to moving to New York, petitioner sent a letter dated 1 February 2006, to the New York State Division of Criminal Justice Services (DCJS) informing it that he was required to register as a sex offender in Florida and the he intended to move to New York by 8 February 2006. DCJS thereafter sent petitioner sex offender registration form, which petitioner executed and returned. After receiving this form, the Board, in a letter dated 8 March 2006, determined that petitioner was a sex offender required to register under SORA, and upon the recommendation of the Board, on 14 November 2006, the court determined that petitioner's Final Risk Level Determination was level 1.

In October 2009, petitioner commenced an Article 78 proceeding to vacate the Board's determination that he was required to register as a sex offender under SORA. In a decision dated 11 June 2009, the court determined that petitioner was entitled to a hearing to determine whether petitioner was properly served with the Board's notification letter informing him that he was subject to the registration requirements of SORA.

Rather than proceed with such a hearing, the Board, on 4 August 2010, stipulated that it would recommence the registration process and "re-issue a final determination." On 25 January 2011, the Board issued a new determination informing petitioner that he was required to register under SORA because he had been convicted of sex offense as set forth in Correction Law § 168-a, and petitioner has since commenced the instant proceeding to vacate or annul the 25 January 2011 determination.

Petitioner's claim turns on whether the Florida proceeding can serve as a basis for requiring him to register as a sex offender under SORA. It was held in Matter of Smith v Devane that SORA indisputably requires persons convicted of certain sex offenses in other jurisdictions to register as sex offenders when they move to New York.

In the case at bar, the Board relies upon the section requiring a person to register for a conviction of (ii) a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred under Correction Law § 168[2][d][ii]). Although petitioner concedes that he was required to register as a sex offender in Florida based on the Florida proceeding, petitioner asserts that the nolo contendere plea with adjudication withheld does not qualify as a conviction for purposes of Correction Law § 168(2)(d)(ii).


To Be Cont...

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The Illinois Appellate Court

August 27, 2014,


The best evidence rule applies only when a party seeks to prove the contents of a writing. It has no application where a party seeks to prove a fact which has an existence independently of any writing, and this is true even though a writing exists evidencing that fact. 'The real reason for the rule,' says it 'shows why it has come to be generally accepted that only documents, or things bearing writing, can be within the purview of the rule. In the first place, it is in the terms and construction of language that the special risk of error lies. In the second place, it is chiefly in respect to language that slight inaccuracies are likely to be of important legal consequence. A mistake, for example, in counting the number of bushels in a bin of wheat can hardly lead to serious consequences, but a mistake in a few letters of an ordinary deed may represent it as giving to Jones instead of to Jonas or as giving five hundred instead of four hundred acres.'
In a decided case, involved a suit for damages by a lady who had been detained and subsequently released after she allegedly took a small quantity of items from the department store's drug counter. After allegedly admitting the theft she signed a release and was allowed to leave. The repossessed items were put back into stock. The civil verdict in her favor was reversed by the Appellate Division with the observation that 'substantial error occurred during the progress of the trial by the exclusion of the testimony offered on the part of the defendant that the several drug articles found in the plaintiff's bag, and which she testified she had purchased at Macy's, all bore the stamp and tag of the defendant.' The trial criminal court had sustained the plaintiff's objection to such testimony upon the ground that the articles themselves were the best evidence. The Appellate Division, in reversing, commented that the best evidence rule relates entirely to documentary evidence, and that the store's witnesses were therefore competent to testify that the articles found upon the plaintiff all bore the trade mark or tag of the defendant. Put another way, the best evidence rule is intended to prevent fraud or mistake and to eliminate uncertainties that may result from faulty memory.

Although reported cases in this jurisdiction appear to be silent on the issue, there is precedent elsewhere for the position taken by the prosecution in the case at issue. Where, for example, the value of contents was in dispute in a case dealing with larceny of a suitcase and its contents, the Supreme Court of Utah refused to apply the best evidence rule, and accepted oral testimony of value without requiring the production in court of the items in question. In another case, the defendant, charged with robbery, claimed that the object of the robbery--a camera case--had to be produced or its failure to do so explained before oral testimony could be admitted to describe it. The Illinois Appellate Court held that this was not necessary, and sustained the trial court's ruling that the identity or value of the victim's property, and the fact that it had a value could be established by oral testimony without accounting for the whereabouts of the camera case at the time of trial.

In the said case, which involved criminal charges against a defendant for unlawful possession of intoxicating liquor, the Tennessee Supreme Court held that the arresting officers' recognition of the liquid by its appearance and smell was sufficient to establish its existence. 'The best evidence rule', said the Court, 'is not applicable to things of this nature and the production of such things in court is not required.'

Corpus Juris sums up the rule in its statement that 'The best evidence rule does not apply to proof of the nature, appearance, and condition of mere physical objects, but these facts may be proved by parol without offering the objects themselves in evidence or accounting for their absence'.

In seeking to invoke the best evidence rule to exclude the complainant's testimony that he saw defendant steal what he knew to be the supermarket's meat, the defendants confuse faulty memory with credibility of the prosecution's witness. Credibility is for the trier of the facts to decide, and the best evidence rule has no place in such consideration.

Having considered the testimony of the People's witnesses, this court now finds that the prosecution has met its burden of establishing reasonable cause to believe that the defendant did in fact commit the misdemeanor with which he has been charged. His motion to dismiss is therefore denied, and he is held for trial. As to codefendant, however, who was seen doing nothing other than sitting behind the wheel of a car with a running motor, the motion to dismiss is granted.