Articles Posted in Sex Crimes

The case involves a respondent who is the subject of a petition for sex offender civil management pursuant to Sex Offender Management and Treatment Act (SOMTA, Article 10 of the Mental Hygiene Law of 2007). He moved 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. The respondent’s motion was denied.

The following are the relevant facts that led to the denial:

On 3 May 1995, the respondent was sentenced in the Supreme Court of New York County 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 rape her, forced her to engage in prostitution, beat her and forced her to ingest narcotics, all of which allegedly occurred in 1992. The respondent also has prior convictions for unlawful imprisonment, attempted assault and forcing a person to engage in prostitution.

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The phrase “good cause” under the venue provision at issue here lists three non-exclusive examples of issues which can be considered in making a venue change determination under the statute. They are the convenience of the parties, the convenience of witnesses and the condition of the respondent. With respect to the convenience of witnesses factor, the Court finds that the State has not made the evidentiary showing which is required by law for the Court to make a determination that this factor weighs in favor of granting the State’s motion.

As noted above, the “convenience of witnesses” ground for a change of venue under Article 10 is strikingly similar to one of the grounds for a change of venue under the C.P.L.R (§510[3]), which provides that the “convenience of material witnesses” and “the ends of justice” may provide a basis to change venue under the C.P.L.R. In these motions, both the State and the Respondents cite to cases decided under the general C.P.L.R. venue provision to argue that this factor weighs in favor of granting or denying the instant motion.

Under C.P.L.R. §510(3), it is well settled that “a change of venue based on the convenience of witnesses may only be granted after there has been a detailed evidentiary showing that the convenience of nonparty witnesses would in fact be served by the granting of such relief”. Four criteria should generally be met by the moving party in such motions. First, the affidavit in support of the motion must provide the names, addresses and occupations of the witnesses. Second, the moving party must disclose the facts the witnesses will testify to, so the trial court can determine whether the testimony would be necessary or material. Third, the movant must show that the witnesses are in fact willing to testify. Finally, there must be a showing as to how the witnesses would in fact be inconvenienced if venue were not changed.

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A New York Sex Crimes Lawyer said that, the Court ordered that the petitioners be subject to all of the required procedures under Article 10 of the Mental Hygiene Law which had become effective on April 13th, 2007, after the petitions had been filed but prior to the time the Court of Appeals decide. The Court noted that although Article 10 of the Mental Hygiene Law was enacted subsequent to the placement of the respondents at the Kirby Forensic Psychiatric Center under Article 9 of the Mental Hygiene Law, the respondents were explicitly designated as subject to Article 10 of the Mental Hygiene Law by the terms of the statute.

A New York Criminal Lawyer said that, the State commenced each of the actions at issue here in New York County more than 2 ½ years ago, initially, pursuant to Article 9 of the Mental Hygiene Law and later under Article 10. Respondents have been confined in New York County where the cases have continued to be venue since that time. Prior to moving to change venue in these motions in April of this year, no motions for a change of venue had been made by either the State or the Respondents in these cases. A trial date has not yet been set in any of these actions.

The issue in this case is whether the motion to change the venue of the case should be granted.

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Ten years ago, the Legislature enacted the Sex Offender Registration Act (SORA), which required certain sex offenders to register with the Division of Criminal Justice Services within 10 calendar days after discharge from incarceration, parole or other release. The legislation created procedures to weigh the threat posed by the offender’s release and classifications geared to the offender’s risk level. SORA contemplates three levels of risk, from level one to level three, with reporting requirements increasing for each level. A five-member Board of Examiners of Sex Offenders is charged with the responsibility for developing risk assessment guidelines and recommending to a sentencing court the risk level involved upon the release of an offender.

A New York Sex Crime attorney said that defendant was convicted in 2000 by a general court-martial under a generic provision in the Uniform Code of Military Justice prohibiting, among other things, “all conduct of a nature to bring discredit upon the armed forces”. Within the general statutory provision, defendant seems to have been convicted of the specific regulatory offense of “indecent assault.” The Navy apparently sentenced defendant to a bad conduct discharge and reduction in pay grade, but no fine or term of imprisonment.

Because the record in this case is incomplete and sometimes inconsistent, the Court was certain as to the basis of defendant’s conviction. One document before the court, apparently from the regional commander, indicates that defendant’s conviction was for “indecent assault” under the general provision in 10 USC § 934. The crime has also been described as a lesser-included offense under the military crime of rape. Contrastingly, a separate postconviction report from the military prosecutor, closer in time to the trial, suggests that defendant was convicted of ordinary assault.

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Respondents in these cases are the subjects of sex crime offender civil management petitions pursuant to Article 10 of the Mental Hygiene Law. On April 17th, April 21st and April 28th 2008, the State moved to transfer the venue of these proceedings from New York County, where they are currently located, to the jurisdictions where the crimes committed by the offenders in these cases occurred. Although each of these motions was brought separately and these cases have not been formally consolidated, the legal issues, procedural history, counsels for the parties and many of the factual issues in these motions overlap.

Respondent was convicted of one count of Sex Abuse in the Third Degree in 1980, one count of Sex Abuse in the First Degree in 1984 and Sodomy in the First Degree in 1993. He was sentenced on the latter conviction to an indeterminate term of incarceration of 6-12 years. Respondent was conditionally released in October of 2001 but violated his parole by possessing child pornography. He was then re-incarcerated and subsequently transferred to the Manhattan Psychiatric Center, as noted above, at the completion of his sentence in 2005.

These cases all arose pursuant to a unique procedural history. In the fall of 2005, after failing to achieve passage of legislation to provide for the civil commitment of convicted sex offenders for a number of years, the Governor charged state officials to “push the envelope” and use the provisions of the existing Mental Hygiene Law to civilly confine convicted sex crime offenders whose prison terms were ending. A New York Criminal Lawyer said that, twelve convicted sex crime offenders were confined at the conclusion of their prison terms at the Manhattan Psychiatric Center between September 23 and October 21, 2005 pursuant to this directive. The Governor relied upon M.H.L. § 9.27(a) for these actions, which authorizes the involuntary confinement of persons who are mentally ill, in need of involuntary care and treatment and pose a danger to themselves or society. Some of these first twelve offenders were later transferred to the Kirby Forensic Psychiatric Center also located in New York County.

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A New York Criminal Lawyer said that, the respondent is a 36–year–old convicted sex crime offender whose first conviction for a sexual offense occurred in 1990 when he raped and sodomized a 4–year–old girl whom his mother was babysitting. He pleaded guilty to rape in the first degree and was sentenced to a prison term of 1 to 3 years.

A New York Sex Crimes Lawyer on January 23, 2001, the respondent was arrested and charged with multiple counts of deviate sexual intercourse with a person under age 11, sodomy and sex abuse. He pleaded guilty to two counts of sex abuse in the first degree involving sexual contact with his girlfriend’s 7–year–old daughter and forcing an 11–year–old girl to undress and allow him to fondle her breasts and vagina. The 2001 rape and sodomy came to light when the younger victim told her mother that she knew about sex because the respondent had forced her into numerous sexual activities, including putting his penis in her mouth and forcing it into her rectum. An investigation determined that between July 1, 2000 and August 31, 2000, the respondent subjected the victim to numerous forms of sexual contact against her will; during the same period, on at least three occasions, he forced a second child to undress and fondled her breasts and vaginal area. In subsequent sex offender counseling, the respondent admitted to the activity, and said he “groomed” the victims by buying them things and that he “fantasized” about them getting naked and in sexual positions; he said his “excuse” was that the older victim was a “big boned girl” who was “ready for sex” and the younger one was “getting there too so it’s ok for her too.” He was sentenced on March 2, 2001 to a term of 5 years to be followed by 5 years’ post-release supervision.

A New York Criminal Lawyer said that, after the respondent was released to parole supervision on June 17, 2005, he absconded to Florida and tampered with his electronic monitoring unit, resulting in his parole being revoked on August 15, 2006. The respondent was returned to custody to complete his sentence. The respondent’s scheduled release date of January 23, 2011 brought him within the purview of Article 10 in October 2010.

This is a proceeding wherein the court holds that registration and the terms and conditions of probation under the Sex Offender Registration Act are not subjects that a trial court must address at the plea hearing because they are collateral and are not direct consequences of a guilty plea. The court notes that the trial court’s neglect to mention SORA or identify potential stipulations of probation during the plea colloquy does not undermine the knowing, voluntary and intelligent nature of a defendant’s guilty plea.

Defendant TG:

On 6 February 2007 by indictment, defendant TG was charged with rape in the second degree under Penal Law § 130.30[1], endangering the welfare of a child under Penal Law § 260.10[1], and unlawfully dealing with a child in the first degree (two counts) under Penal Law § 260.20[2] for providing alcohol to underage children and having sex with a 14-year-old boy. TG was a 34-year-old mother of six in September 2006, when the events underlying the indictment took place.

A New York Sex Crimes Lawyer said that, on September 2, 2009 the defendant pled guilty to Sex Abuse in the Second Degree, sexual contact with an individual greater than 17 incapable of consent. The crime is a Class A misdemeanor. He was sentenced to time served and released without supervision on the same day of his plea/conviction. Thereafter, this SORA proceeding was commenced. The Cayuga County District Attorney’s office presented a risk assessment instrument (“RAI”), prepared by the New York State Board of Examiners of Sex Offenders (“the Board”) and based on the Board’s Risk Assessment Guidelines and Commentary, 2006 (“the Guidelines”). Under the RAI, the defendant was assessed 145 points on the 15–category instrument and, based on the accumulated points, classified as a Level 3 offender.

A New York Criminal Lawyer said that, the RAI was accompanied by a case summary, which was based on the “inmate’s file, which may include but is not limited to the pre-sentence investigation, prior criminal history and post-offence behavior.” The case summary alleges that the 32–year–old defendant was in a bar with a 25–year–old female. Neither person knew the other until the night of the sex crime. They met at a bar, drank, talked and then went to another bar. The case summary alleges that defendant was intoxicated but makes no mention of the condition of the victim. However, the victim “began to feel ill” and entered the ladies room. Later, the defendant entered that ladies room, held her hair and rubbed her back as she continued to vomit. The case summary alleges that he then fondled her breasts and “she repeatedly told him to stop” and then “he pinned her to the side of the toilet and stall wall, lifted her up and pulled down her pants and removed her tampon and then penetrated her vagina with his penis.” The case summary alleges that she was “screaming for him to stop” and “yelling for help.” After some time, two women came to her aid and “forced him to leave.”

A New York Rape Lawyer said that, the case summary also alleges that defendant, when later confronted by a DNA test, admitted that he touched the victim’s vagina with his penis, but, “noted that it was consensual.” It then makes reference to “some suggestion that the victim was drugged,” as a drug-facilitated sexual assault kit was administered and victim was noted to be “far more intoxicated than she should have been based on the number of drinks she had had.” Id. The defendant was indicted for Rape in the first degree and sexual abuse in the first degree and, according to the summary, “will be scored accordingly.”

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As to this second prong, as set forth further herein, the Court finds this provision in the statute is not so punitive as to negate the civil purpose conceived by the Legislature.

There is no dispute that SOMTA has both criminal and civil provisions, but each such provision expressly articulates its nature and its intent. The criminal aspects of the bill were codified in the Penal Law, in the creation of the new “sexually motivated penalty.”

With respect to Section 10.07(c), however, the Legislature’s intent is demonstrated by the label – “civil” – given to the provision by the Legislature, the way in which the provision was codified, and the enforcement procedures it establishes, all identifiers of legislative intent. In creating this “civil” commitment scheme in the Mental Hygiene Law, not the Penal Law, the Legislature’s purpose is obvious. Section 10.07(c) also was codified in the Mental Hygiene Law, not with the new crime in the Penal Law.

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An Albany Sex Crimes Lawyer said that, the defendant, was charged on May 6, 2008 with one count of residing within 1,000 feet of real property, in violation of Local Law No. 8 (2006) of the County of Albany, a misdemeanor. By notice of motion filed on August 29, 2008, the defendant through his attorney, moves for omnibus relief. The People have responded through the affirmation in opposition of filed on September 26, 2008. The matter now comes before the court for a decision.

An Albany Criminal Lawyer said that, the defendant seeks an order dismissing the accusatory instrument on the ground that Albany County Local Law No. 8 (2006) is preempted by New York State law. Before reaching the merits of the above argument, the court addresses the People’s sole response to the instant motion that “this Court has previously ruled on the constitutionality of this statute”. While, certainly, the above decision, among others, is entitled to respectful consideration, it is nonetheless well settled that a decision of a judge of coordinate jurisdiction is not binding precedent.

An Albany Sex Crime Lawyer said that, Local Law No. 8, which became effective on September 1, 2006, is entitled “A Local Law of the County of Albany, New York Establishing Residency Restrictions in the County of Albany For Sex Crime Offenders Who Have Committed Criminal Offenses Against Minors” and provides the following at section 3: “A sex crime offender as herein defined shall not reside within one thousand feet of a real property compromising a public or nonpublic elementary school or secondary school, or a child care facility.” Local Law No. 8 defines “sex offender” at section 2 (a) as “a person who has been convicted of a sexual offense against a minor and has received a level two or three designation as defined in Article 6-C of the New York State Correction Law.” Section 2 (b), in turn, defines a “child care facility” as “licensed and/or registered child day care centers, group family day care homes and family day care homes as defined by the New York State Social Services Law.” Lastly, section 2 (c) defines the term “residence” as “the place where a person sleeps, which may include more than one location, and may be mobile or transitory.”

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