New York Criminal Lawyer Blog

Brian Thomas was charged with two counts of first degree rape, two counts of first degree sodomy, two counts of first degree sexual abuse and one count of second degree burglary. Specifically, Mr. Thomas was accused of unlawfully entering a dwelling with the intent to commit rape and sodomy and subsequently compelling a female victim to engage in sexual intercourse by force. On April 21, 1988, Mr. Thomas plead guilty to one count of attempted rape in the first degree and received a sentence of 7 ½ to 15 years.

The prosecution filed a motion with the Schoharie County Court to obtain a sample of Mr. Thomas’s blood in order to test it for the AIDS virus. Mr. Thomas’ criminal defense attorney opposed the motion on the grounds that it effectively constituted an unlawful search and seizure under the Fourth Amendment.

On August 14, 1978, Mr. Thomas was convicted in Nassau County Court of first degree attempted rape. He received a maximum sentence of ten years and was released on April 7, 1987.

In the current case, evidence was presented to the Grand Jury which established that Mr. Thomas had repeated sexual contact with the victim and exposed her to his bodily fluids. The victim was subsequently concerned about the possibility that she may have been exposed to the AIDS virus following the forcible rape and sodomy committed by Mr. Thomas.

Section 240.40 of New York Criminal Procedure allows that the court may order a defendant to provide non-testimonial evidence when an indictment is pending, including the taking samples of blood, hair or other bodily fluids or tissue in such a manner that does not involve substantial intrusion or serious risk of physical injury.

The Schoharie County Court noted that the AIDS virus is spread through the transfer of bodily fluids and that a blood analysis can determine whether someone is infected with the virus or not. The court also noted that the instance of AIDS was higher among the state prison population versus the general population.

Under the Fourth Amendment, individuals are protected from unreasonable searches and seizures. However, in Mr. Thomas’ case, the court held that the prosecution’s request for a blood sample was reasonable and allowable within the framework of constitutional law.

On April 18, 1988, the U.S. Senate approved mandatory AIDS testing for individuals convicted of drug and sex crimes. The measure allowed for results to be confidential but for records to be closed to prison wardens and/or the victims of sex crimes, including rape, sodomy and sexual abuse.

Based on the Senate’s decision, the court argued that the victim had a right to know whether Mr. Thomas may have exposed her to the AIDS virus through unlawful sexual contact. Furthermore, the intrusion to Mr. Thomas in collecting a blood sample was viewed as minimal compared to the mental trauma and anxiety suffered by the victim.
The court also noted that if Mr. Thomas tested positive for the AIDS virus, he could be charged with a count of depraved indifference murder.

Subsequently, the court granted the prosecution’s motion to obtain a blood sample from Mr. Thomas and noted that the results should be disclosed to the victim and the New York State Department of Correctional Services, if he tested positive.

Mr. Thomas’ criminal defense attorney acted correctly in objecting to the prosecution’s request in an attempt to protect his client’s rights. While his efforts were ultimately unsuccessful, he made every effort to act as an advocate for Mr. Thomas.

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Call 1-800-NY-NY-LAW to speak with one of our criminal defense experts or visit one of our New York area offices to discuss your case in person. Don’t let a conviction for a sex crime ruin your life. Contact Stephen Bilkis and Associates today to get the legal representation you need to fight sexual offense charges.

In 1985, Juan Santos was convicted of one count of first degree rape, one count of second degree rape, four counts of first degree sodomy and four counts of second degree sodomy. The charges stemmed from claims brought by Mr. Santos’ two stepdaughters, who claimed that he forcibly raped and sodomized them on multiple occasions. Following his conviction, he was sentenced to a combined term of 25 to 50 years.

Mr. Santos’ criminal defense attorney filed a motion to set aside the verdict and this request was granted in 1991. The New York County Supreme Court was unable to determine why the conviction was overturned but the prosecutor in the case claimed they had arranged a plea agreement in which Mr. Santos would plead guilty to one count of first degree rape. In exchange, he received a sentence of 5 to 15 years, according to a New York Criminal Lawyer.

In September 2008, the court received a letter from the New York Board of Examiners of Sex Offenders concerning Mr. Santos’ risk level. The person who drafted the letter, Board Examiner Floyd Epps, stated that Mr. Santos had raped, sodomized, sexually abused and threatened the two victims over a period of several years. The letter also indicated that Mr. Santos claimed the charges were false and that his wife had encouraged the two girls to make up the story because she was angry that he was having an affair. In addition, Mr. Santos has denied committed the sex crimes he was charged with.

According to a Nassau County Criminal Lawyer, Mr. Santos was released on parole in May 1994 and in January 1997, returned to prison because of a violation. He was released again in April 1997 and incarcerated again in 2003 because of another violation. In 2004, he was released again and his supervision period ended. At the time of his initial parole, he was classified as a Level Three sex offender. Following his last release from prison, he earned both a bachelors and master’s degree and refrained from engaging in criminal activities. Based on these facts, Mr. Santos filed a motion to have his sex offender status downgraded to a level two classification.

The court ordered the prosecution to prepare a new risk assessment evaluation to detemine Mr. Santos’ threat level. This document assigns a specific number of points to certain factors which when combined, provide a score which is used to assess the potential for future reoffense. After completing the new assessment, Mr. Santos’ score was determined to be 115, which was five points over the minimum score required for a Level Three classification. Based on this result, he then filed a motion to have his risk level downgraded to Level Two, citing the positive changes in his lifestyle following his release from prison. Both the prosecutor and the Board of Examiners opposed this motion.

The New York County Supreme Court was charged with determining whether to grant Mr. Santos’ request. Specifically, the court looked at the guidelines created by the Sex Offender Registration Act and the factors incorporated as part of the risk assessment document. Individuals with a score of 0 to 70 are classified as Level One offenders; a score of 75 to 105 points leads to a Level Two classification; and Level 3 offenders have a score of 110 to 300 points. The higher the score, the greater the perceived risk that a sex offender will commit subsequent sex crimes. Mr. Santos’ criminal defense attorney did not challenge the validity of the risk assessment toll but merely questioned whether the scoring system had certain limitations that should be considered in determining whether to upgrade or downgrade an offender.

The court acknowledged that Mr. Santos’ score was based on both objective and subjective determinations, rather than a psychiatric evaluation. The court also noted that the points designated for each factor, including the use of violence, the age of the victim and the type of contact involved, did not appear to have any actuarial basis. Furthermore, the court found that the factors used to calculate risk level were seemingly arbitrary in some circumstances and that the timing of an offense could cause the score to increase dramatically. Finally, the court held that the risk assessment tool was outdated and failed to account for new scientific research findings regarding sex offender recidivism rates and risk factors. However, the court is generally not allowed to depart from the findings of the risk assessment tool unless certain aggravating or mitigating circumstances are present.

In Mr. Santos’ case, the court held that downgrading his classification to a Level Two offender was justified based on his actions after his final stay in prison in 2004. The court argued that there was clear and convincing evidence of his reduced threat level which support the change in status, despite the score determined by the risk assessment tool. The court did agree that Mr. Santos’ failure to acknowledge guilt for his crimes should be counted against him in calculating his risk score but that that fact alone did not support the Level Three classification. The court also acknowledged that Mr. Santos had not been a model citizen after his 1994 release and that the fact that there was no evidence of unlawful sexual contact with a minor did not mean that these types of offenses had not occurred during that period. However, based on the perceived recidivism risk, the court supported his status being downgraded to Level Two.

Being labeled a sex offender can have serious and long-lasting repercussions and make it difficult to become a productive member of society. Fortunately, Mr. Santos was able to move in a more positive direction after his release from prison, which merited the change in his sex offender status.

If you or a loved one is battling a sex crimes charge, you need the aid of an experienced legal counsel to protect your rights. The law office Stephen Bilkis and Associates is available to assist criminal defendants in the New York area who are charged with rape, sodomy, sexual abuse and other types of unlawful sexual contact. Call 1-800-NY-NY-LAW today to get the legal help you need. You can also discuss your case in person by visiting one of the firm’s New York are offices. Don’t hesitate to contact Stephen Bilkis and Associates today to get the help you need to fight a sex crime charge.