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HIV test is allowed


The defendant was indicted in 1994 in a twenty-eight count criminal indictment charging that he engaged in sexual relations with his 15 year old daughter, during a three month period. A Nassau Criminal Lawyer said that, the defendant 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 who would be unduly traumatized by testifying in court against her father. While the defendant 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.

A Sex Crime Lawyer said that, the defendant 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” pursuant to the SORA.

A Lawyer said that, after the plea, the assistant district attorney moved pursuant to Criminal Procedure Law section 390.15 that the defendant submit to a human immunodeficiency virus (“HIV”) test. Attached to the People’s motion was an application for HIV testing signed by the alleged victim. The defendant steadfastly refused to take the HIV test on the ground that the defendant still maintains his innocence and no proof otherwise was ever presented to this 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. No robbery or gun possession was involved.

The issue in this case is whether defendant is entitled to lower classification as sex offender.

The court in deciding the case said that, under the Sex Offender Registration Act, 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 section 168-l 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 crime. Here, the defendant has not accepted responsibility and still maintains his innocence by way of his Alford-Serrano plea. The defendant challenges this court’s assessing of points for not accepting 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 either their discharge from prison, their release from parole, or their sentence of probation (Correction L. § 168-f). The court must determine the risk level of the defendant to determine the level of notification to the public that will be made. There are three levels of risk: (1) low; (2) moderate; and (3) high. 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 crime 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.

The Sex Offender Registration Act Risk Assessment Instrument is used by the Division of Parole, the Department of Probation, and the courts to determine the presumptive risk level of the sex crime offender. The worksheet incorporates the factors contained in Correction Law section 168-l and assigns a point value to the various factors. The point system is further divided up into four categories: (1) Current Offense(s); (2) Criminal History; (3) Post-Offense Behavior; and (4) Release Environment. The levels of sex offenders are determined as follows: Level 1 = 0 to 70 points; Level 2 = 75 to 105 points; and Level 3 = 110 to 300 points. Additionally, there are four other factors which override the numerical total and will automatically classify the offender a Level 3. They are: offender has a prior felony conviction for a sex crime; offender caused serious physical injury or death; offender has made a recent threat that he will commit a sexual or violent crime; or there has been a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases ability to control impulsive sexual behavior.

Pursuant to subdivision three of Correction Law section 168-d, this 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 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 Justice writing for the Appellate Division Second Department held that “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”.

This 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 (1) violates his Constitutional rights as an unreasonable search and seizure under the Fourth Amendment of the Constitution of the United States (U.S. Const. amend. 4; N.Y. Const. art. 1 § 12); (2) constitutes retroactive punishment and is violative of the ex post facto clause of the United States Constitution; and (3) that the request was not made by the “victim” as that term is defined in Criminal Procedure Law section 390.15 as the defendant never admitted his guilt.

Criminal Procedure Law section 390.15 took effect on August 1, 1995 and was to apply to all persons convicted and adjudicated after that date. Under the law, where a defendant is “convicted of a felony offense enumerated in any section of article one hundred thirty of the penal law” and where “sexual intercourse” or “deviate sexual intercourse” was an element of the crime for which the person was convicted, the “the court must, upon a request of the victim, order that the defendant submit to human immunodeficiency (HIV) related testing”. The court ordered test must then be performed within fifteen days of the order.

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 section 390.15 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. Secondly, it must be noted that the procedure itself in obtaining a blood sample is not “brutal,” “offensive” or “shocking to the conscience.” As the United States Supreme court stated: 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 defense claims that this law would violate the prohibition of enforcement of ex post facto laws contained in Article 1, section 10 of the U.S. Constitution. 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, this court finds that the HIV testing statute does not violate the ex post facto clause of the Constitution.

Here the defendant is convicted of Rape in the Third Degree (Statutory Rape) and his daughter is the “victim.” The defense states that since there is no evidence that the defendant had sexual relations with his daughter and maintains that he is innocent of the crime there is no “victim.” This is clearly not the case. This court’s discussion of the ramifications of the Alford-Serrano plea discussed above is equally applicable here. The victim’s request made as part of a motion by the People will be treated as made on behalf of the victim.

Therefore, this 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 court held that the defendant’s motion is denied.

Under the SORA, individuals convicted of certain designated offenses are required to register with the Division of Criminal Justice Services within ten days of their discharge from prison, their release from parole, or their sentence of probation. If there has been a violation of the said rule, seek the assistance of a Nassau Criminal Attorney and Nassau Sex Crime Attorney in order to know the legal remedies available under the law.

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