Articles Posted in Sex Crimes

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A court may thus exercise “protective jurisdiction” if the criminal defendant’s conduct has a “materially harmful impact” upon governmental processes or the welfare of the community. It is not sufficient under the statute that the conduct caused an injury to a particular person; what is required is injury to the county’s governmental processes or community as a whole, and that the defendant intended that effect or acted with knowledge of such effect.

This court is not aware of any cases applying CPL 20.40 (2) (c) to confer jurisdiction over a prosecution charging a criminal defendant with failure to register under SORA. A starting point in understanding this statute as it applies to the present case is the Court of Appeals analysis, and the examples it provided in its opinion.

Some cases have found protective jurisdiction where conduct in one county would further the commission of a potential crime in the county in which a prosecution for such conduct (but not the future crime) was brought. Other cases have found protective jurisdiction where a defendant’s out-of-county conduct would have an effect particularly on governmental processes. CPL 20.40 (2), however, is not limited to these situations, for it extends to any conduct that has a material effect on the community, if such conduct was performed with the requisite intent under the statute.

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The defendant, who has been charged in Bronx County with failing to register with the Sex Offender Monitoring Unit in New York County, has moved for dismissal of the complaint on the ground that the court lacks geographic jurisdiction over this prosecution because the defendant’s alleged failure to register occurred in New York County. The defendant’s motion is denied, however, because of the material effect of the alleged failure on Bronx County. As explained below, such effect is a statutory basis for jurisdiction in Bronx County.

A Bronx County Criminal lawyer said that according to a superseding complaint dated December 1, 1999, the defendant, who had previously been convicted of attempted sexual abuse in the first degree, failed to comply with the registration requirements of the Sex Offender Registration Act (SORA) in violation of Correction Law § 168-t. Specifically, a police officer alleged in the complaint that on July 29, 1999, the defendant failed to verify his registration personally with the Sex Offender Monitoring Unit (SOMU), located at 314 West 40th Street, New York, New York, as he was required to do. Further, the officer alleged that the defendant resided in Bronx County and that the SOMU was “the sole designated law enforcement agency for the five boroughs of New York City” at which a sex crimes offender may register or verify his registration.

The issue before this court is whether these allegations are sufficient to sustain this court’s geographic jurisdiction.

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Considering its context, the Criminal Court concludes that the “essential elements” provision in SORA requires registration whenever an individual is convicted of criminal conduct in a foreign jurisdiction that, if committed in New York, would have amounted to a registrable New York offense. This necessarily requires that the Board compare the elements of the foreign offense with the analogous New York offense to identify points of overlap. When the Board finds that the two offenses cover the same conduct, the analysis need proceed no further for it will be evident that the foreign conviction is the equivalent of the registrable New York offense for SORA purposes. In circumstances where the offenses overlap but the foreign offense also criminalizes conduct not covered under the New York offense, the Board must review the conduct underlying the foreign conviction to determine if that conduct is, in fact, within the scope of the New York offense. If it is, the foreign conviction is a registrable offense under SORA’s essential elements test.

In this case, comparison of the elements reveals that there is significant overlap between the conduct criminal in the analogous New York offense and the activity covered by the federal child pornography offense. However, because the federal offense covers some activity—possession of child pornography involving children aged 16 and 17—not encompassed in the New York offense, review of the conduct underlying petitioner’s federal conviction is necessary. Here, it is undisputed that petitioner possessed pornographic images of children under age 16 and therefore engaged in conduct that was criminal under both the federal and comparable New York offenses. As such, the Board did not err in determining that, by virtue of his federal child pornography conviction, petitioner was required to register under the “essential elements” provision in Correction Law § 168-a (2)(d)(i).

This result is consistent with statements in the legislative history of the 2002 SORA amendments relating to the inclusion of the specified federal offenses. The Governor’s Program Bill Memorandum and the Senate and Assembly sponsors’ memoranda indicate that the intent in listing the federal child pornography offense was to “clarify” that the offense was subject to registration, which was necessary because some federal offenders had contested the equivalency of the federal and New York offenses. By characterizing the new legislation as a “clarification,” rather than as a change in the law, the Legislature and the Governor indicated that the child pornography offense was already subject to registration under the existing “essential elements” provision. Hence, in their view, the victim age distinctions between the federal and state offenses did not preclude registration under that standard.

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Addressing the second prong of the Mathews test, if the criminal courts entirely dispense with the filing of a laboratory report or field test before deeming a complaint to be an information, there is a substantial risk of an erroneous deprivation of an individual’s liberty through the procedures endorsed in the Kalin decision. It is unnecessary to cite the percentage of cases where police officers, for all their training and experience, have been wrong about the nature of the substance recovered any instance of this occurrence is unacceptable if all uncertainty as to the nature of the substance recovered can be eliminated by the filing of a laboratory analysis.

The third prong of the Mathews test, which requires an assessment of the “probable value” of the “additional or substitute procedural safeguard” of having a field test or laboratory analysis available before the criminal misdemeanor complaint is deemed an information is readily apparent.

Further, there is no additional fiscal or administrative burden that the additional or substitute procedural requirement would entail.

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Similarly, while Family Court Act §311.4 (2) authorizes the Family Court to substitute a PINS petition for a juvenile delinquency proceeding “at any time in the proceedings” and Family Court Act §311.4 (2) authorizes the Court to substitute a PINS finding for a juvenile delinquency finding at the conclusion of the dispositional hearing”, nothing in that section purports to preclude multiple substitutions of petitions or findings in the course of a single criminal proceeding where subsequent developments make clear that the prior substitution was an improvident exercise of judicial discretion as held in Kloogman v Schall.

It should be noted that statutes are to be construed according to the ordinary meaning of their words and where a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded

In the case at bar, the statutory provisions in question provide clearly defined authority and specific procedures governing the exercise of that authority. Nothing in the language of Family Court Act §311.4 or §355.1 indicates any Legislative intention to prohibit multiple substitutions of petitions or findings or multiple applications for relief under Family Court Act §355.1.

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The Criminal Court is not persuaded that the Legislature intended that the SORA “essential elements” inquiry involve the same strict equivalency approach used in the criminal enhanced sentencing context. The enhanced sentencing standard was developed by this Court more than 50 years ago in cases interpreting the second felony offender provision currently codified at Penal Law § 70.06(1)(b)(i)—a provision that long predated the second violent felony offender statute and which has never included the “essential elements” language found in SORA. Obviously, the strict equivalency requirement does not turn on the presence of “essential elements” language. As such, the Legislature’s decision to use that phrase in Correction Law § 168-a (2)(d) does not suggest an intent to incorporate the strict enhanced sentencing test in SORA proceedings.

The Court is similarly not persuaded that language in Correction Law § 168-a (2)(d)(iii) compels a strict interpretation of the “essential elements” standard. Subsection (iii)—added in 2002—enumerates specific federal offenses, including petitioner’s child pornography offense, as registrable offenses, “provided that the elements of such crime of conviction are substantially the same as those which are a part of such offense” as of the effective date of the legislation. Petitioner suggests that, by using the “substantially the same” language in subsection (iii), the Legislature was signaling that the “essential elements” language already included in subsection (i) must be strictly interpreted. But this linguistic distinction is explained by the fact that the “substantially the same” language relates to an entirely different inquiry than the “essential elements” test. Under subsection (i) the Board must compare the foreign offense to the analogous New York offense while subsection (iii) requires the Board to review the federal offense to make certain that it is “substantially the same” in content as it was at the time it was listed in SORA in 2002.

To Be Cont…

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The question of whether such an exercise of discretion is consistent with the criminal court’s obligation to protect the constitutional due process rights of all defendants who appear before the court arises.

Under article I, § 6 of the New York State Constitution, “No person shall be deprived of life, liberty or property without due process of law.” “Nor shall any State deprive any person of life, liberty, or property, without due process of law.”

In Hamdi v Rumsfeld, the United States Supreme Court acknowledged that there is a tension “between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprived of a constitutional right as held in Mathews v Eldridge.

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The criminal court concluded that the respondent was a person in need of supervision, treatment or confinement and he was adjudicated to be a juvenile delinquent. Thereafter, upon the Court’s own motion and with the consent of the Law Guardian, a finding that respondent is a PINS was substituted for a finding that he was a juvenile delinquent akin to Matter of Devon R. and Matter of Michael OO. and based upon the evidence adduced at the dispositional hearing respondent was placed in the custody of the Administration for Children’s Services with a further direction that he be placed with LW for 12 months.

The order placing the respondent with ACS was based upon the Court’s determination that he required supervision and placement, that continuation of respondent in his own home would not be in his best interests, that reasonable efforts had been made to maintain respondent in the community by substituting a PINS petition for the juvenile delinquency petition and by ultimately releasing him to his parent with the intention of providing him with appropriate community based services. In addition, the Court also considered the needs and best interests of the respondent as well as the need to protect the community akin to Matter of Jeremy L., Matter of Justin H., Matter of Samantha T. and Matter of Ashlie B.

Thereafter, the court was advised that respondent had absconded from the LW campus and the Court issued a warrant for him and by order dated 25 January 2006, respondent’s placement was temporarily extended pending his appearance before the Court upon the warrant akin to Matter of Charles B.

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The Unlawful Surveillance aspect of this crime, in the Court’s view, can certainly be said to have been “sexually motivated”. If the Criminal Respondent was indeed seeking to take a picture or make a videotape of the sexual or intimate parts of the victim inside of her clothing that act can certainly be described as having been “committed in whole or in substantial part for the purpose of direct sexual gratification of the actor.”

There is no evidence that the injury which was caused to the victim was sexually motivated however. The injury occurred during a struggle between the Respondent and the victim over the Respondent’s cell phone battery. The evidence at the hearing clearly indicated that the Respondent’s motivation during his struggle with the victim, in the Court’s view, was to get the shattered pieces of his phone back. The sexual motivation definition cited supra requires that the “act or acts constituting a designated felony” were committed in whole or in substantial part for the purpose of direct sexual gratification. That language, in the Court’s view, by using the terms “act or acts constituting” connotes that all of the essential acts necessary to commit sex crimes were committed in whole or in substantial part for the purpose of direct sexual gratification. For example, an offender who unlawfully enters a home to commit a sexual assault (and also to steal property) has a sexual motivation to commit a burglary.

There is also clearly no basis to believe that he would be likely to commit a “Designated Felony” which was “Sexually Motivated” under the statute if he were not confined. Such a prediction would require a finding that the Respondent was highly likely to commit a felony like robbery, burglary, arson or homicide, for the purpose of direct sexual gratification if he were again released into the community. There is no basis in this record to make such a prediction.

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In Matter of Hearst, the Court of Appeals identified three factors which would justify an exception to the mootness doctrine: “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues.” Where these three factors are present, this issue should be addressed by a criminal court as an exception to the mootness doctrine as held in People v Brown, People v Mejia, Matter of Crystal AA and Wagner v Infante.

In the case at bar, the court finds that they are all present. The question raised is repeatedly addressed every day in the criminal courts of the City and State of New York. Further, different judges may view the same accusatory instrument and, in exercising their discretion under Kalin, may come to opposing conclusions as to whether or not said accusatory instrument establishes a prima facie case. Once the arraignment judge exercises his or her discretion, this issue will rarely, if ever, be reviewed.

As to the issue mentioned in the first paragraph, under CPL 100.15, it is well established that every accusatory instrument must contain two elements: (1) an accusatory portion designating the offense charged, and (2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. Further, under CPL 100.40, it is equally well established that a misdemeanor information is facially sufficient if the nonhearsay facts stated in said information establish each and every element of the offense charged, as well as the defendant’s commission of said sex crimes. In People v Alejandro it was held that if both these factors are present, then the information states a prima facie case, and is sufficient.

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