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Alford-Serrano plea is effective

The defendant father was indicted in 1994 in a twenty-eight count indictment charging that he engaged in sex relations with his 15 year old daughter, during a three month period. He entered into a negotiated Alford-Serrano plea to one count of rape in the third degree with the assistant district attorney, with the knowledge and consent of the victim’s mother. The court in view of the representations of the prosecutor, and the defense along with the victim’s mother, accepted the plea bargain based on the fact that the victim was of limited intelligence and would be unduly traumatized by testifying in court against her father. While the father maintained his innocence he claimed that a jury might convict him of rape in the first degree rather than the statutory rape charge to which he pled. Domestic violence at its worst.

The criminal defendant father argues that since he took an Alford-Serrano plea, whereby he maintained his innocence, yet acknowledged that the prosecutor may have been able to obtain a conviction, it should not be used against him in calculating his classification as a sex offender.

After the plea, the assistant district attorney moved pursuant to Criminal Procedure Law that the defendant submit to a human immunodeficiency virus (“HIV”) test. Attached to the motion was an application for HIV testing signed by the allege victim. The defendant father steadfastly refused to take the HIV test on the ground that he still maintains his innocence and no proof otherwise was ever presented to the court. He also argues that the disclosure of a positive test result if it occurred would harm his reputation in the community since the victim’s family has in the past proliferated defamatory written materials attacking him and his employer.

A defendant who takes an Alford-Serrano plea does not accept responsibility for the offense. Quite the contrary, the defendant here vehemently protested his guilt and maintains his innocence. However, the defendant cannot have it both ways; he cannot maintain innocence and thereby circumvent the collateral consequences of his plea of guilty or the nature of his plea.

Under the Sex Offender Registration Act (SORA), the New York version of Megan’s Law, a court must classify the defendant as a type of sex offender. In order to classify the defendant a Sex Offender Registration Act Risk Assessment Instrument promulgated by the Board of Examiners of Sex Offenders pursuant to Correction Law is utilized. The worksheet designates a numerical value to risk factors which are then added together. The resulting sum determines the presumption of the defendant’s risk level under the statute. One of the categories of risk is whether the defendant has accepted responsibility for the sex crime.

Under the SORA, individuals convicted of certain designated offenses are required to register with the Division of Criminal Justice Services (DCJS) within ten days of their discharge from prison, their release from parole, or their sentence of probation. The court must determine the risk level of the defendant to determine the level of notification to the public that will be made. Although notification to local law enforcement agencies is mandated for all three levels of sex offenders, public or community notification is only authorized for levels 2 and 3 sex offenders. A Level 2 designation will allow law enforcement agencies to release information to the public about the sex offense committed, a photograph of the offender and his zip code. If the offender is a Level 3 risk the law enforcement agency can disseminate the exact addresses of the offender. Grand Larceny was not involved.

Pursuant to Correction Law, the court conducted an in camera session where counsel for the defendant and the prosecutor were present. The defendant had waived his right to be present. Each side was granted an opportunity to discuss the various factors on the worksheet. Mathematically, the court assessed a presumptive risk factor total of 80 points, including 10 points for not accepting responsibility for the offense due to the Alford-Serrano plea and the comments made to probation in the pre-sentence report.

When a defendant enters an Alford-Serrano plea, although he is not admitting to committing the sex crime in question, that conviction can still be used against him. For example, a criminal conviction is conclusive proof of the underlying facts in a subsequent civil action even if that conviction results from an Alford-Serrano plea. The criminal defendant who enters such a plea is no less guilty than one who is convicted of the same charge by a jury or by a conventional guilty plea, and is subject to no less punishment.

While it is true that in a Serrano-type guilty plea there is no admission, as such, of the facts justifying the conviction, it is manifest that a defendant entering such a guilty plea, like any defendant entering a conventional guilty plea chooses, for reasons which he deems good and sufficient, not to avail himself of the opportunity to contest the facts underlying the charge against him. That of course is his prerogative. However, he must accept the consequences of his action.

The court is of like mind. Even though the defendant did not admit the offense charged, he did plead guilty to it. Therefore his lack of taking responsibility for his actions is a factor rightfully considered by this court in assessing points against a defendant on the SORA worksheet for classification as a sex offender. In short, the defendant cannot have it both ways. He cannot protest his innocence while pleading guilty by way of an Alford-Serrano plea and then claim that no consequences or conditions subsequent to the plea should apply to him.

The defendant opposes the request that he undergo an HIV test on the grounds that such a test violates his Constitutional rights as an unreasonable search and seizure under the Fourth Amendment of the Constitution of the United States; constitutes retroactive punishment and is violative of the ex post facto clause of the United States Constitution; and that the request was not made by the victim as that term is defined in Criminal Procedure Law as the defendant never admitted his guilt.

While it is clear that an intrusion into the body for blood is clearly a search under the Fourth Amendment, the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. Whether or not a search is reasonable is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.

The testing procedure is a civil not a criminal procedure. Much like a civil action, the victim, not the prosecutor on behalf of the State of New York, is seeking a private remedy against the defendant. No one, other than the victim and defendant have a right to know the results of the test. The test results are not being sought as evidence against the defendant, or to enhance the level of the crime, or to give the defendant a longer sentence. The test is being done solely for the benefit of the victim’s health. Accordingly, HIV testing under Criminal Procedure Law presents a special need for which this court must balance the government’s interest against that of the defendant.

Although the defendant argues that the disclosure of the test result could harm his reputation in the community, this argument must be weighed against the fact that the order of the court granting such a test and all related papers would be sealed by the court. Additionally, the test results are only given to the person making the application. The person making the request is only permitted to re-disclose the information to her immediate family, guardian, physician, attorney and mental health provider.

Additionally, Public Health Law provides for a civil penalty of up to $5,000 per occurrence for a violation of this statute, and a person who wrongfully discloses such information is guilty of a misdemeanor. Also, the same stigma which might attach to the defendant, unfortunately, could also attach to the victim and her family if they were to proliferate the fact that she had been sexually assaulted by an HIV positive man.

Secondly, it must be noted that the procedure itself in obtaining a blood sample is not brutal, offensive or shocking to the conscience.

The blood test procedure has become routine in our everyday life. It is a ritual for those going into the military service as well for those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same, though a longer, routine in becoming blood donors.

The defendant claims that the state’s interest in obtaining the results of the HIV test is minimal as it will have no medical utility.

The alleged incidents occurred more than 2 1/2 years ago. Therefore, the doctor concludes, the only reliable test is one which would be performed on the victim herself and that a test on the defendant at such a late date does not have any medical utility. While this court may agree that scientifically an HIV test of the defendant taken 2 1/2 years after the alleged rape may have limited utility, there is no provision to direct the victim to take an HIV test as that would prove to be more relevant to the victim. However, some courts have concluded that the fact that the test of the assailant’s blood would not be conclusive does not defeat the government’s interest.

At issue is the balancing of the rights of privacy and confidentiality of the infected person with the unknowing person’s right to know in order to be tested and treated, along with society’s right to stop the spread of HIV.

The defense claims that this law would violate the prohibition of enforcement of ex post facto laws contained in the U.S. Constitution.

The United States Supreme Court has held that the constitutional prohibition on ex post facto laws only applies to penal statutes which disadvantage the offender affected by them. Additionally, the Supreme Court has held that procedural changes, even though they can disadvantage the accused, do not violate the ex post facto clause.

The defendant states that the statute is penal in nature based on his fear that the victim’s family would proliferate the results of the test in the community and hurt his reputation. It must be said that the defendant’s fear is not unwarranted as the victim’s family did place signs concerning the arrest of the defendant in areas of Staten Island where the defendant works and resides.

Accordingly, the court finds that the HIV testing statute does not violate the ex post facto clause of the Constitution. The court holds that the Sex Offender Registration Act Risk Assessment Instrument points allocated against the defendant for failure to take responsibility were proper. Moreover, the request that the defendant be tested for HIV is permissible and constitutional. Accordingly, the defendant’s motion is denied.

Parents should be the first persons to protect their children from people who want to commit any form of harm against them. If a family member committed sexual harm against you, approach the Nassau County Sex Crime Lawyer together with the Nassau County Criminal Attorney from Stephen Bilkis and Associates.

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