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In May 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 attorney said that a sex offender civil management petition was filed in Greene County Supreme Court and an amended petition was filed in New York County Supreme Court. The Respondent was in custody pursuant to his sentence at the time of the filing of the initial petition and has been in since that time. In February 2010, the Justice found that there was probable cause to believe that the Respondent was a detained sex 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.

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, robbery, burglary and kidnapping which “were committed in whole or in substantial part for the purpose of direct sexual gratification of the actor”.

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. 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.

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” Article 10 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 respondent suffers from a “mental abnormality” must also determine whether a respondent’s previous conviction for a Designated Felony was sexually motivated.

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.

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.

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 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.

The finding is established only through a determination of the Respondent’s current condition. Thus, the risk of an erroneous deprivation of a person’s liberty inherent in the absence of a statute of limitations arises because persons subject to a retroactive sexually motivated felony determination are eligible for civil management. Previous sexual motivation, however, cannot alone establish that the offender currently suffers from a mental abnormality.

With respect to “the probable value, if any, of additional or substitute procedural safeguards” there are certainly provisions the Legislature might have chosen to import into the statute to minimize the risk that an offender would be erroneously found to have previously committed a sexually motivated felony. For example, proof beyond a reasonable doubt could have been required. The Legislature might have chosen to require certain specific kinds of evidence be provided to establish sexual motivation. A statute of limitations which was greater than five years might have been adopted. The Legislature might have chosen to require the State to prove the commission of a previous sex crime, rather than simply a sexual motivation.

There is no statute of limitations applicable to a sexual motivation determination for a Designated Felony which was committed prior to SOMTA’s effective date. But that is because, for such crimes, that designation has no effect on a Defendant’s criminal conviction. It serves only as a screening device to determine which offenders may be eligible for civil management. Finally the statute is, in fact, limited with respect to how far back in time a “sexually motivated” felony classification can reach. An offender must be in the “care, custody, control or supervision” of a relevant agency like the State Department of Correctional Services or the Division of Parole with respect to a prior Designated Felony in order to be eligible for civil management. MHL § 10.03 (g). The Respondent here clearly meets that criteria. But if the Respondent in this case, for example, had finished serving his entire sentence for his Designated Felony and had not been committed for another crime, under the SOMTA statute, the State would not have been entitled to bring a petition in this case because the Respondent would not be a “Detained Sex Offender”. The requirement that an offender meet the definition of a Detained Sex Offender imposes an effective temporal limitation in a wide range of cases on the ability of the state to allege that a prior Designated Felony was sexually motivated.

Respondent’s claims, in the Court’s view, assert valid policy concerns about the manner in which the Legislature has chosen to allow for the retroactive designation of prior convictions for non-sexual offenses as sexually motivated felonies which may result in civil management. In the Court’s view, however, those arguments raise policy issues within the Legislature’s province to determine rather than constitutional defects requiring judicial intervention.

For all of the foregoing reasons, Respondent’s motion to dismiss the petition is denied.

While an accused if found guilty should be punished, his constitutional right to due process must be protected. Here in Stephen Bilkis and Associates, our New York Criminal Defense lawyers ensures that the right of the accused is always protected. It is a constitutional right which everyone must adhere. For rape cases, consult our New York Rape attorneys who will represent the victim in court proceedings and prosecute the offender.

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