New York Criminal Lawyer Blog

The child in this case was a 14 years old girl, who underwent a medical examination, and revealed that she was 12 weeks pregnant. At first, the girl denied that she had been sexually active or that she was being sexually abused at home. She later claimed that she had been raped at school by a classmate.

The girl eventually told the investigating police officers that she had consensual, unprotected intercourse with a 14 year old boy. She explained that she lied about being a rape victim because she did not want her parents to know that she was having sex. After she gave the police a written withdrawal about the accusation, the case was closed.

The girl turned 18 years of age. Over a year later, when she was 19 years old, she informed the police that she had been sexually assaulted years earlier by her step-grandfather and her previous statement aren’t true.

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On October 23, 1981 the criminal defendant was convicted of kidnapping in the first degree and related crimes. The defendant was sentenced to a term of 20 years to life imprisonment. Briefly, he and two others attempted to rob a man outside of the man’s apartment. The robbery was not successful and the intended victim was able to retreat back into his apartment, but in doing so he left his three-year-old daughter and his friend behind in the hallway. The friend talked his way out of the situation and left; the would-be robbers took the child and then concocted a scheme to blackmail the victim and his wife. But this effort was foiled as well, the men were arrested, and the child was recovered without harm.

None of the actions of the defendant or the other two men in any way contained or even intimated a sexual component. Nonetheless, upon his December 2001 release from prison to lifetime parole, the defendant was notified that the Sex Offender Registration Act (SORA) deems him to be a sex offender because, under the definition of kidnapping in the first degree, the victim of the kidnapping was less than seventeen years old and the offender is not the parent of the victim. Accordingly, he was told to appear in court so that his classification level could be determined. At that appearance, the defendant argued that because he was never accused of any form of sexual impropriety toward the child pornography or anyone else, applying the act to him was arbitrary and capricious and violated his constitutional rights.

By decision and order, the court determined that, pursuant to the statute, the defendant is subject to the classification and registration provisions of the Sex Offender Registration Act because his criminal act is among the enumerated crimes to which the act applies. A second hearing was ordered to determine what level of classification the defendant should be assigned. At that hearing the defendant, again through his appointed counsel, more specifically argued that application of the SORA to him violated his constitutional rights under the Due Process, Equal Protection, and Ex Post Facto Clauses.

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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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A man pleaded guilty to information charging him to one count of computer transmission of material involving sexual exploitation of minors. The aforementioned charge arose from allegations that the man had transmitted via the internet three photographs of teenagers engaged in sexually explicit conduct. The man was sentenced to home detention for a period of fifteen months and five years’ probation from the child pornography offense, and was directed to undergo mental health treatment during the entire term of his probation

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The board of examiners of sex offenders informed the man that since he had been convicted of a sex offense in another state yet he resides in New York State, he may be required to register as a sex offender under the provisions of the sex offender registration act. The letter invited the man to submit any materials that he wished the board to consider in making their determination.

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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