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Designated Felony


A New York Criminal Lawyer said that, the Respondent is the subject of a petition for sex offender civil management pursuant to Sex Offender Management and Treatment Act. He moves here to dismiss the petition on the basis that certain provisions of the statute as applied to him are violative of the United States and New York State constitutions.

A New York Sex Crime Lawyer said that, on May 3, 1995, the Respondent was sentenced in New York County Supreme Court for convictions of Kidnapping in the Second Degree, Promoting Prostitution in the Second Degree and Bail Jumping in the First Degree. He received concurrent indeterminate sentences of 9-18 years’ incarceration on the kidnapping charge, 4-8 years on the promoting prostitution charge and 3-6 years on the bail jumping charge. According to the State, Respondent’s kidnapping and promoting prostitution charges included conduct in which he restrained the victim, repeatedly raped her, forced her to engage in prostitution, beat her and forced her to ingest narcotics. These acts allegedly occurred in 1992. The Respondent also has prior convictions for unlawful imprisonment, attempted assault and forcing a person to engage in prostitution.

A New York Criminal Lawyer said that, a sex crime offender civil management petition was filed in Greene County Supreme Court on December 3, 2009 and an amended petition was filed in New York County Supreme Court on December 18, 2009. The Respondent was in DOCS custody pursuant to his sentence at the time of the filing of the initial petition and has been in DOCS or OMH custody since that time. On February 17, 2010, Acting Greene County Supreme Court Justice found that there was probable cause to believe that the Respondent was a detained sex crime offender who suffered from a mental abnormality. The venue of the instant proceeding was subsequently transferred to this Court where the Respondent is awaiting trial.
The issue in this case is whether the motion of the respondent to dismiss the petition for sex crimes offender civil management pursuant to Sex Offender Management and Treatment Act, should be granted on the ground that certain provisions of the statute as applied to him are violative of the United States and New York State constitutions.

Article 10 of the Mental Hygiene Law creates a comprehensive system to subject certain sex offenders to indefinite civil confinement or indefinite strict and intensive supervision and treatment. The challenges made here concern a unique category of sex offenses which were created for the first time in New York law by SOMTA and are denominated as “sexually motivated” felonies. A “sexually motivated” felony is one of a list of non-sexual felonies, including, for example, robbery, burglary and kidnapping which “were committed in whole or insubstantial part for the purpose of direct sexual gratification of the actor”. MHL § 10.03(s).
The chapter which enacted SOMTA provided that an offender convicted of a felony which was sexually motivated could be subject to sex offender civil management. But the Act also, separately, created a new category of criminal offenses called sexually motivated felonies under a definition which is substantively identical to that provided by SOMTA. These new criminal provisions apply only to crimes committed after the Act’s effective date (April 13, 2007). The consequence of being convicted of a “sexually motivated” felony under the Penal Law is that the offense is treated as a sex crime for sentencing purposes, rather than a non-sexual offense. This can have the effect of increasing an offender’s term of incarceration and post-release supervision.

Persons alleged to have been convicted of designated felonies which are sexually motivated may be subject to civil management under two distinct provisions of the statute. First, an offender who “stands convicted of a sex offense” (which under the operative definition of a sex offense includes a Designated Felony which is sexually motivated) can be subject to civil management if he is currently serving a sentence for such an offense or a “related offense” (a defined term under the statute). This provision applies only to conduct which occurs subsequent to SOMTA’s effective date. Offenders who stand convicted of sexually motivated Designated Felonies under the Penal Law are treated under SOMTA in the same way as any other convicted sex offender.

But offenders can also be subject to civil management under a second unique provision of the statute. A person “who stands convicted of a designated felony that was sexually motivated and committed prior to the effective date of this article” may also be subject to civil management. Such offenders must be convicted of a Designated Felony like robbery, burglary or kidnapping to be SOMTA eligible. But since “sexually motivated” crimes did not exist prior to SOMTA’s effective date, such offenders, of necessity, could not possibly have been convicted of a sexually motivated crime which was committed before SOMTA’s effective date. To address these prior cases, SOMTA provides that the jury which determines whether the criminal respondent suffers from a “mental abnormality” must also determine whether a respondent’s previous conviction for a Designated Felony was sexually motivated. MHL § 10.07(c).

These two different methods of proving sexual motivation (at an Article 10 trial for offenders convicted prior to April 13, 2007 and in a criminal trial for offenders convicted after that date) also result in two different standards of proof being used to determine whether a Designated Felony was sexually motivated. For crimes committed prior to April 13, 2007, sexual motivation must be proven by clear and convincing evidence (since it is part of the Article 10 trial determination). For crimes occurring after that date, the sexual motivation component of a Designated Felony must be proven beyond a reasonable doubt (the standard of proof in a criminal trial) because such determinations must, of necessity, have been made in a criminal proceeding.

The statute of limitations applicable to proof of sexual motivation also varies depending upon whether a Designated Felony was committed prior to or after SOMTA’s effective date. For crimes committed prior to SOMTA’s effective date, there is no statute of limitations which is imposed for proving the sexual motivation of a Designated Felony. In contrast, since sexually motivated crimes which occur after SOMTA’s effective date must be proven in a criminal proceeding, the sexual motivation component of those crimes, along with all of the other aspects of such charges, are subject to normal criminal statutes of limitation provisions. Such crimes must thus generally be prosecuted within 5 years of their occurrence, with certain exceptions. See CPL 30.10(b).

The Respondent first asserts that the designation of a non-sexual offense committed prior to the effective date of SOMTA as sexually motivated violates the Ex Post Facto clause of the United States Constitution. Article 1, § 9, clause 5 of the United States Constitution provides that “no ex post facto Law shall be passed” but does not otherwise elaborate on that prohibition. The United States Supreme Court has defined an ex post facto law as: any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed.

As noted, supra, where an offender is alleged to be a sex offender in need of civil management because he committed a sexually motivated felony subsequent to SOMTA’s effective date, an offender can only be eligible for civil management if the sexual motivation was found by a criminal jury by proof beyond a reasonable doubt. Where such a sexual motivation is alleged to have occurred for a Designated Felony committed prior to SOMTA’s effective date, however, the sexual motivation finding must be made by a civil management jury using the lower standard of clear and convincing evidence. Respondent alleges that this lesser standard of proof for retroactive determinations and the discrepancy between the findings required for crimes committed prior to or after SOMTA’s effective date are a violation of due-process and equal protection.

In that case, the Criminal Court determined that the clear and convincing evidence standard applied by the statute to backward-looking determinations of sexual motivation did not violate either the Respondent’s due-process or equal protection rights. Farnsworth is the only New York State appellate decision on this topic which has been rendered thus far and this Court is bound to follow the Farnsworth holding. For that reason, Respondent’s motion to dismiss the petition because the clear and convincing evidence standard applied to determinations of sexual motivation violates due-process and equal protection is denied.

Finally, Criminal Respondent claims that a 5 year statute of limitations should apply to any determination that an offender’s previous felony conviction was “sexually motivated” just as such a limitations period generally would apply to most prospective determinations under the criminal law to the prosecution of sexually motivated designated felonies. He alleges that the failure to impose such a limitations period violates due-process and equal protection. This is not an argument which the Fourth Department explicitly considered in Farnsworth.

To Be Cont

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

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

For all of the foregoing reasons, Respondent’s motion to dismiss the petition is denied.
If your constitutional rights has been impaired, seek the help of a New York Criminal Attorney and New York Sex Crime Attorney at Stephen Bilkis and Associates.

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