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Pursuant to Penal Law § 30.00 (1)


This case involving child sexual abuse committed by an adolescent raises issues of the Supreme Court’s jurisdiction to resolve by guilty plea charges involving a continuous offense spanning defendant’s infancy and adulthood, charges underlying a juvenile delinquency finding, and charges for which defendant may be prosecuted as an adult.

A New York Criminal attorney said that defendant was charged in a six-count indictment with one count of course of sexual conduct against a child in the first degree, four counts of sodomy in the first degree, and one count of endangering the welfare of a child. The charges arose from incidents commencing when defendant was 13 years old and the victim was four years old, and continuing until defendant was 17 years old and the victim was seven years old. During those years, the victim was regularly brought to defendant’s home for babysitting by defendant’s mother. The incidents occurred when defendant’s mother left the victim in defendant’s sole care while she left the house to run errands.

Defendant fully allocuted to each count in the indictment, acknowledged his guilt and indicated his awareness of the consequences of his plea. The court made no promise with respect to the sentence, but agreed to consider granting defendant youthful offender status. Although no mention of the People’s position on youthful offender status was placed on the record at that time, during an off-record, chambers conference with the court and defense counsel earlier that day, the Assistant District Attorney had suggested that, if defendant had himself been a victim of prior sexual abuse, the People would likely not oppose a finding that defendant receive youthful offender treatment. Pursuant to the Sex Offender Registration Act, at the time his plea was entered, defendant was certified as a sex offender.

It is undisputed that defendant began committing the acts underlying counts one and six when he was less than 16 years old and continued committing them after his 16th birthday. An issue thus arises as to whether defendant can be prosecuted as an adult for these offenses.

Pursuant to Penal Law § 30.00 (1), a person less than 16 years old is not criminally responsible for his or her conduct. A “juvenile delinquent” is defined as a person more than seven years of age and less than 16 who has committed an act that would constitute sex crimes if committed by an adult and who is not criminally responsible by reason of infancy.

In an analogous circumstance, Federal courts have observed that the Federal Juvenile Delinquency Act does not prohibit the prosecution as an adult of an individual who first became involved in a criminal conspiracy while a minor. In a case, the court reasoned that neither logic nor judicial efficiency would be served by bifurcating into two prosecutions a conspiracy spanning an individual’s minority and adulthood, and that the entirety of the criminal conduct could be tried in adult proceedings.

While research reveals no case law addressing this issue in New York, the reasoning applied in a case is persuasive here. Bifurcation of the prosecution of the continuing offenses charged in counts one and six would be as ill-conceived in this case. Certain portions of each charge would have to be tried in the Family Court, while other portions would necessarily remain in the Supreme Court. The result would be confusing and possibly contradictory, and would needlessly prolong the litigation.

Furthermore, a crime which is commenced in infancy but continues into majority may properly be treated as a crime committed by an adult. In another case, the Second Circuit upheld an adult prosecution of defendants who began committing acts while they were juveniles and continued to do so upon attaining majority. Analogizing the defendants’ participation in the conspiracy to the ratification by an adult of a contract negotiated while a minor, the court held that a defendant may “ratify” his premajority involvement in a conspiracy by continuing to participate in it after attaining adulthood.

As defendant was more than 16 years old when he committed the crimes charged in counts one, four and six, he may be held responsible as an adult for these crimes. Before imposing sentence, however, pursuant to the terms of defendant’s plea of guilty, the court was first required to determine whether defendant was an “eligible youth” for purposes of deciding whether he was entitled to the benefit of youthful offender treatment.

Notwithstanding their earlier suggestion to the court and to defense counsel, the People opposed a finding that defendant be deemed an “eligible youth.” Defendant asserted that his prior sexual victimization, visited upon him by a close family friend just prior to his commission of the instant offenses, had been undisclosed previously due to threats from the abuser, and in any case bears directly upon the manner in which his crimes were committed.

A youth who is eligible for youthful offender treatment is a person between the ages of 16 and 19 at the time of the commission of the charged crime. A youth is not eligible for youthful offender treatment if the conviction to be replaced by the youthful offender finding is for first degree sodomy or rape. Nonetheless, such a youth is an “eligible youth” if the court determines that there exists “mitigating circumstances that bear directly upon the manner in which the crime was committed.”

In determining whether prior sexual victimization as a child, which was not involved in the case law cited in this case, constitutes a factor “`directly’ flowing from and relating to defendant’s personal conduct while committing the crime,” reference must first be made to the findings of social scientists in the study and treatment of juvenile sex offenders. Although all criminal acts may stem from behavioral problems, these studies provide ample evidence that defendant’s criminal conduct derived directly from, and related expressly to, his prior experience as a child sex abuse victim.

An understanding of defendant’s conduct in this case begins with examination of its psychological origins. Of the several theories which have been advanced respecting the etiology of sexual deviance, the one which speaks most directly to this case suggests that adolescent offenders learn sexual deviance through their observations of adult offenders: “This model points to the physical and sexual abuse that most adolescent perpetrators encountered in their own lives as a set of events that they subsequently re-enact, viewing themselves as moving from the role of the child victim to that of the powerful perpetrator.” This theory is borne out by studies revealing that a history of sexual victimization is shared by many juvenile sex offenders, who seek a locus of control over their environment by recreating the abusive relationship, with themselves as the abuser: “This form of victimization may perpetuate what is commonly known as the cycle of abuse.

In applying the foregoing model to the instant case, it is readily apparent that in abusing the victim, defendant may have been reenacting the trauma he suffered by mimicking the conduct of the adult who had abused him. One could say that it was almost as if the family friend were standing beside him as defendant committed the instant sex crimes, guiding his movements with respect to the victim who had replaced defendant in the abuse equation. It is extremely telling that the court’s own forensic social worker observed, in recommending a continuation of community-based treatment, “[h]is behavior appears related to his own history of sexual abuse rather than to a pattern of sexual attraction to young boys.”

Addressing the People’s argument that defendant’s initial denial of prior victimization in this case should prompt this court to discredit defendant’s current claim of abuse, certainly a reluctance to report such victimization is not unusual. Moreover, studies have indicated that the “dissociation, and disclosure [of prior sexual abuse] in and of itself may be traumatic.”

In addition, where the perpetrator is a trusted family friend, as was defendant’s abuser, the abuse is less likely to be disclosed due to a fear on the victim’s part that disclosure will result in harm to the victim or to other family members. As noted, defendant had also witnessed abuse suffered by other members of his family.

The court find defendant’s claim of abuse credible in this case because it contains details which are supported by surrounding facts and circumstances, and because four different professionals, all of whom are trained to recognize fabrication of such claims, accepted defendant’s report as true.

For these reasons, the Court found that defendant’s prior victimization constitutes a factor “directly flowing from and relating to defendant’s personal conduct while committing the crime” and that, therefore, it constitutes a mitigating circumstance bearing directly upon the manner in which the charged crimes were committed.

Of course, defendant must account for his crime. The victim’s family has understandably demanded stern punishment for defendant. Furthermore, the People have accurately relied that psychological treatment of adolescent sex offenders generally ends at age 18 and that despite the availability of follow-up programs, participants frequently resist further treatment.

Here, however, defendant has sought treatment on his own has already agreed to permit defendant to continue in its program. Treatment will be mandated by the court, with any failure in compliance resulting in a jail or prison term. Defendant will also be required to participate in judicially monitored community service and other productive activities while continuing to be law abiding.

In the Court’s view, the studies relied upon by the social scientists mentioned above, as well as the clinical assessments done of this defendant by his treating clinicians and by the court’s forensic social worker, clearly show that community-based rehabilitation of this adolescent is not only viable, but preferable to a mandatory State prison sentence. A youthful offender adjudication and a probationary sentence offer the greatest chance for ensuring defendant’s continued rehabilitation, without jeopardizing the safety of the victim or the community.

Accordingly, defendant’s conviction on counts one, four and six are replaced by youthful offender adjudications, a probation sentence is imposed on each such count and a final order of protection is entered.

Defendant is adjudicated a juvenile delinquent as to counts two, three and five. Defendant’s convictions on counts one, four and six are replaced by youthful offender adjudications. Defendant’s certification as a sex offender is withdrawn.

Sexual abuse cases should be best referred to lawyers who are diligent and dedicated In helping those victims who do not know how to enforce their rights before the courts of Justice. Here in Stephen Bilkis and Associates, we have the lawyers you have been looking for. We have New York Sexual Abuse attorneys who will represent you in every stage of the proceedings in court. We also have New York Criminal lawyers for your other needs.

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