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Court Determines if Unlawful Surveillnce is a Sex Crime


A 55 year old man, after violating a criminal law, has been placed under the Strict and Intensive Supervision and Treatment (SIST) under a sex offender civil management proceeding. Subsequently, the State filed for a petition to revoke the respondent SIST’s placement and requested the court for the respondent to be transferred under a Secure Treatment Facility under Article 10 of the Mental Health Law. The court denied the petition.

A New York Criminal Lawyer said the respondent acknowledged that he was a drug user from 1980 up to 1993. He admitted having marijuana possession and used it during his teenage years. His addiction relating to drug crime led him to commit several offences. In 1994, the court has found him guilty of Attempted Rape in the First Degree, Sexual Abuse in the First Degree and Burglary in the First Degree for entering an apartment of a lady and while holding a knife, placed her hand on his penis. Prior to this incident, he was a known exhibitionist masturbating in public places while his penis was partially exposed to public view. He admitted that he suffered from a Mental Health Abnormality thus the State entered an agreement for him to be placed and monitored under the SIST.

On August 11, 2010, the respondent placed his cellphone camera under the skirt of a woman in Union Square Park with the intention of photographing the victim. A New York Criminal Lawyer said the victim upon its discovery threw the cell phone and scuffled with the respondent. In course of the incident, the victim suffered physical injuries. In addition to this incident, a parole officer mandated to supervise him during the program testified that the respondent violated the terms of the agreement by masturbating in a public place. The respondent admitted to masturbating inside the stall of a public restroom and a library.

These incidents prompted the State to file a petition to revoke the respondent’s placement under SIST. The State opined that the respondent is a dangerous sex offender requiring confinement in accordance with the standards set forth by the law. It presented several witnesses to support its allegation among whom is a psychologist who testified that the respondent could have a substance abuse which can prompt the offender to re-commit the crime. However, New York Sex Crimes Lawyer said that on cross-examination, the State’s psychologist stated that there existed “protective factors” or variables considered by him which lowered the likelihood that the Respondent would re-offend. He specifically identified the Respondent’s age, and cessation of drug use.

The court considered several factors on whether the respondent should be subjected to a regimen of strict and intensive supervision of confinement.

Under Article 10 of the Mental Health Law, sex offence has been classified into a) specific sexual offense felonies and b) specific non-sexual offense felonies which are defined as “Designated Felonies” but which must be sexually motivated. According to the court, the act of intentionally placing a camera under a victim’s skirt and secretly recording a victim’s sexual or intimate part is a Class E felony. It is the crime of Unlawful Surveillance in the Second Degree under Penal Law Sec. 250.45 (4). A New York Drug Possession Lawyer said the Respondent was not charged with this crime or an attempt to commit this crime in connection with the August 11, 2010 incident. The court has found that neither public masturbation, voyeurism, unlawful surveillance in the second degree, attempted unlawful surveillance in the second degree nor assault in the third degree are defined as sex offenses under Article 10. Hence, despite that the respondent was likely to engage in any of the offenses charged the court did not find any clear and convincing evidence that the offenses are sexually motivated.

Among the issues raised by State was with respect to respondent’s engaging in exhibitionism and voyeurism – that he will likely commit the precise kind of crime – if he were again released into the community. The court stated that it must be satisfied that it is “highly probable” that the respondent will commit the kinds of “hands-on” sexual crime which qualifies as a “sex offense” under Article 10 if he is not confined or, alternatively, that he will commit some other “Designated Felony” with a sexual motivation if such confinement is not imposed. According to it, as stated by the witness psychologist, the last and only time the respondent committed a sexual contact offense under the statute was 18 years ago (i.e., 1993). That offense was aggravated by his cocaine possession and homelessness at the time, both of which are no longer present.

Our New York Criminal Lawyers from Stephen Bilkis & Associates located at the New York Metropolitan Area are always willing to provide you with advices relating to similar situations.

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