Articles Posted in Sex Crimes

This proceeding brought before the court on 26 May 2011 held a probable cause hearing arising out of a petition filed on 14 January 2011 by the New York State Attorney General (“Petitioner”), pursuant to Article 10 of the Mental Hygiene Law (“MHL”), seeking a determination that Respondent ET is a detained sex crimes offender requiring civil management. Dr. KC, a licensed psychologist, who was qualified by the Court as an expert in the field of psychology, testified on behalf of Petitioner. Respondent presented no witnesses.

At the conclusion of the hearing, Petitioner asked the Criminal Court to make a finding of dangerousness with respect to Respondent and to direct that he be civilly confined pursuant to MHL § 10.06(k) pending a trial on the matter.

Based upon the evidence presented at the hearing, the Court found that Petitioner had established that there is probable cause to believe that Respondent is a detained sex offender requiring civil management. The Court issued an interim order finding that Respondent would be a danger to the community, in part because no form of community supervision pending the outcome of the Article 10 petition is provided for in Article 10. The Court informed the parties that it would issue a written decision.

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This is a proceeding wherein the Defendant appeared before the Court for a risk level determination pursuant to the Sex Offender Registration Act (SORA).

First, defendant moved to have this Court declare SORA unconstitutional and argues that the SORA Risk Assessment Instrument (RAI) does not measure the risk of re-offense as it purports to do but reflects a moral judgment about how blameworthy sexually offending behavior is. He describes the instrument and risk level determinations under SORA as punitive rather than regulatory. For this reason, he alleges, the statute is unconstitutional.

Second, defendant urges that the use of a “psuedo-scientific” instrument, the RAI, to deprive persons of a basic liberty interest violates due process. Defendant acknowledges that this claim was rejected by the First Department in People v Ferrer but argues, inter alia, that the decision is so conclusory that it cannot act as a barrier to consideration by this Court.

In the case at bar, the claim that the federal jurisdictional predicate excludes BM’s federal crime from inclusion under SORA is even weaker. First, in fact, BM was in New York County when he attempted to acquire the videotapes, and second, the jurisdictional requirement is for the federal crime, in addition to all other elements, and not in substitution therefor. While an essential element necessary for a conviction in New York missing in the federal prosecution would bar a conviction in such proceeding from consideration under SORA, an additional element should not. In the former case, there would be no basis to believe an analogous crime had been committed. In the latter case, there would only be a possibility that some persons who might have been convicted in New York would not be convicted under the federal statute which requires additional elements to be proven for conviction. The court finds that “essential elements” must be considered by applying appropriate standards of statutory construction.

New York State courts have almost uniformly held that the laws requiring registration of sex crimes offenders are remedial and therefore constitutional. In most cases, the courts have found SORA does not violate double jeopardy rights or the Ex Post Facto Clause. Requirements for notification and registration are civil and remedial and do not constitute punishment. The purpose of which is to adopt a remedial measure to ameliorate the danger to the public caused by the release of sex offenders and does not violate petitioner’s double jeopardy rights. Since SORA is unquestionably a remedial or civil statute, the court must apply appropriate construction to the “essential elements” test.

Remedial statutes are those which are made to supply some defect or abridge some superfluity in the former law, or which supply a remedy where none previously existed. They are also referred to as statutes designed to correct imperfections in prior law by generally giving relief to the aggrieved party. Generally speaking, remedial statutes meet with judicial approval and are to be liberally construed to spread their beneficial results as widely as possible. A liberal construction of such statutes is one which is in the interest of those whose rights are to be protected, and if a case is within the beneficial intention of a remedial act, it is deemed within the statute, though not actually within the letter of the law.

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On 12 May 1999, BM pleaded guilty in the United States District Court for the Southern District of New York to an indictment charging a violation of 18 USC § 2252 (a) (2), a federal class C felony, carrying a potential punishment of more than one-year imprisonment. The indictment charged that BM attempted to purchase videotapes depicting child pornography. The underlying facts indicate that BM, using a computer, ordered tapes which depicted sex acts involving children ages 5, 6 and 14 years old.

Based upon such conviction, the New York State Board of Examiners of Sex Offenders, acting pursuant to the New York Offender Registration Act (SORA), Correction Law article 6-C, determined that BM was required to as a sex crimes offender, and so notified him on 7 December 2000. BM has challenged the applicability of SORA to him on the ground that the federal conviction does not include all of the essential elements of the applicable designated felony as set forth in SORA.

SORA requires a person who has been convicted of certain criminal offenses, referred to in SORA as “sexual offenses,” to register as a sex offender in the State of New York. A “sexual abuse offense” is defined by express reference to a list of New York crimes if the conviction was in New York. Under SORA, crimes committed in other jurisdictions include a conviction under federal law in a federal court in New York. There are two alternate criteria established to determine whether such crime is a “sexual offense” under SORA which requires SORA registration: “whether the conviction in the other jurisdiction was a conviction of an offense which includes all of the essential elements of any such felony provided for in paragraph (a) of this subdivision Correction Law § 168-a [2] [b] -paragraph (a) lists the New York offenses requiring registration, or whether the other conviction was a conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred.”

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Respondent’s background was obtained by means of questions put to TS who has supervised respondent’s foster care with New York Foundling since 2007. Criminal Respondent was referred to the Girls Education & Mentoring Services, a social services program offering counseling to young women who have been sexually exploited sometime in 2009. On October or November of 2009, respondent disappeared from the GEMS facility and she subsequently fabricated a kidnapping, stating that kids kidnapped her from GEMS. According to TS, respondent later recanted, stating it was made up and she was not kid-napped. Rather, she went off and spent some time with a young man. According to TS, respondent had been referred to the GEMS program by New York Foundling because BP has a history of prostitution. TS recalled that in 2007 respondent’s foster care case had come under her supervision and that respondent, who was then just 12 years old, was already introduced to the lifestyle and had been working with criminal adult pimps.

In October, 2009, respondent gave birth to her own daughter and she and the infant were initially placed in a “mother/daughter” foster home in Brooklyn. Since then, the infant has been removed from respondent’s custody and placed into a different foster home. Child protective proceedings have been commenced on behalf of the infant and against the respondent by the Administration for Children’s Services.

In arguing for the substitution of a PINS petition, respondent’s Law Guardian contended that respondent is a victim of sexual exploitation and is entitled to the relief requested. The Law Guardian observed that respondent has no prior juvenile delinquency adjudications for offenses based upon acts defined by article 230 of the Penal Law nor does she have any PINS history in the Family Court. In addition, the respondent is herself a child placed in foster care as the result of child protective proceedings and termination of parental rights proceedings which had been previously brought against her biological parents.

In this proceeding, the criminal respondent is charged with committing acts which, were she an adult, would constitute the crimes of Prostitution, Resisting Arrest, Obstructing Governmental Administration in the Second Degree, and False Personation. Respondent has moved pursuant to Family Court Act § 311.4(3) for an order directing the substitution of a petition alleging that she is a Person in Need of Supervision for the petition alleging that she is a juvenile delinquent.

The petition alleges that on 18 May 2010 in Queens County, the respondent, BP born 17 July 1994, offered to engage in sexual conduct with an undercover police officer in exchange for payment in violation of Penal Law § 230.00, that respondent resisted arrest by fleeing from police officers who intended to take her into custody for committing the sex crimes of Prostitution and that she obstructed governmental administration by physically resisting arrest and by refusing to follow the directives of police officers after she had been taken into custody.

The undercover police officer states that at approximately 6:50 A.M. in the vicinity of 111th Avenue and Sutphin Boulevard, Jamaica, Queens County, a known prostitution location, the respondent asked him what he wants and with a hand gesture indicating oral sex respondent asked if he wanted a blow job. The police officer asked the criminal respondent how much for the blowjob and she replied, in sum and substance, “fifty dollars”. Thereafter, respondent got inside the vehicle.

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This case involves for petitions pursuant to Article 10 of the Mental Hygiene Law. In April 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. Specifically, the State moves to transfer venue in the first matter from New York County to Chemung County, in the second matter from New York County to Oswego County, and in the third matter from New York County to Ulster County.

A New York Criminal attorney said that 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.

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 persons convicted of sex crimes 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 offenders whose prison terms were ending.

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Respondent is the subject of a sex offender civil management petition filed pursuant to article 10 of the Mental Hygiene Law. A hearing was conducted to determine whether probable cause exists to believe respondent is a sex offender requiring civil management pursuant to Mental Hygiene Law § 10.06 (k). The petitioner called one witness, a Psychiatric examiner. Although the court did not credit certain aspects of her testimony, as explained infra, the court found her testimony to be credible. The respondent did not call any witnesses.

A New York Sex Crimes lawyer said that witness is employed by the New York State Office of Mental Health since August 2007 testified that she is both a psychologist and psychiatrist currently evaluating and diagnosing sex offenders. She testified that she had previously worked in New York State at the Central New York Psychiatric Center treating and evaluating sex offenders and had also worked at the Albany Correctional Facility, as the Acting Coordinator of the Mental Health Unit, where she did sex offender evaluation and provided some crisis intervention treatment while supervising a staff of eight. Outside New York State, She testified, she had evaluated criminal female offenders and juveniles in California as part of her doctoral program and did community mental health work in New Hampshire. She further stated that she had been to over 10 training sessions and conferences with experts in the field of sex offenders from March 2006 through August 2008.

The witness said she had evaluated or diagnosed criminal sex offenders with disorders related to thought, mood, substance abuse, sex and personality. She stated that she had evaluated over 40 sex offenders pursuant to article 10 and approximately 100 sex offenders in total. Additionally, she testified that she teaches developmental psychology and an undergraduate course in forensic behavioral science.

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A New York Sex Crimes Lawyer said that, the Respondent is the subject of a sex offender civil management proceeding pursuant to Article 10 of the Mental Hygiene Law (“Article 10”). As noted in more detail infra, the Respondent admitted that he suffered from a Mental Abnormality under the statute and was given an agreed-upon disposition of Strict and Intensive Supervision and Treatment (“SIST”) on September 15, 2009. On November 15, 2010, the State brought a petition to revoke the Respondent’s SIST placement and instead have him confined in a Secure Treatment Facility. That petition was opposed by the Respondent.

A New York Criminal Lawyer said that, on December 9, 2008, this Court, in a detailed decision, found that there was probable cause to believe that the Respondent was a detained sex crime offender who suffered from a mental abnormality pursuant to Article 10. The facts relevant to the Respondent’s history prior to that date are fully recounted in that decision. The most relevant aspects of that history will be briefly outlined here. The “instant offense” which resulted in respondent’s being eligible for sex offender civil management occurred in 1993 and led to a conviction in 1994 for Attempted Rape in the First Degree, Sexual Abuse in the First Degree and Burglary in the First Degree. In that incident, the Respondent had been on a rooftop where he was looking at a woman in an apartment across the street, using cocaine and masturbating. He entered the victim’s apartment through a window, took a knife from the apartment, got on top of the previously sleeping victim and placed her hand on his penis. The Respondent at this point indicated that he could not become aroused. The victim threw him off of her bed. He then fled from the apartment and took a purse from her. This was the only incident in which it was known, prior to the Respondent’s placement on SIST, that he had engaged in a sex offense involving physical contact with a victim.

A New York Sex Crime Lawyer said that, respondent did, prior to being placed on SIST, have an extensive history of exhibitionism. Typically, this would involve him masturbating in public places while his penis was partially exposed to public view. It is clear from his history that he has engaged in such conduct on a large number of occasions over an extensive period of time. Prior to this Court’s probable cause determination, he had been diagnosed as suffering from exhibitionism, voyeurism and cocaine dependence. This last diagnosis was found to be in sustained full remission. Prior to being placed on SIST, P.H. also had a long history of burglary, trespassing and theft related arrests and convictions.

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Effective 21 January 1996, the New York Sex Offender Registration Act (SORA), section 3 of Chapter 192 of the Laws of 1995, Correction Law Art. 6-C, sections 168-et seq., modeled after New Jersey’s Megan’s Law, requires that convicted criminal sex offenders register with the appropriate law enforcement agencies. On the basis of an assessment of risk, information pertaining to this offender may be disseminated by the appropriate law enforcement agencies to the public. Under SORA, there must be a determination of: whether a defendant is indeed “a sex offender or a sexually violent predator”; and, “the level of notification”.” These determinations are to be strongly based on the recommendations made by the Board of Examiners of Sex Offenders (the Board). The Board has promulgated a Risk Assessment Instrument (RAI), which is to be utilized by the courts, “to assess the risk of a repeat offense by such sex offender and the threat posed to the public safety.”

Under the RAI, a numerical value to various factors is assigned, resulting in a “total risk factor score.” Based on this score, the offender is further categorized into one of three levels of notification. Where the risk of repeat offense is low, a level one designation (0 to +70) is assigned, and this requires that the appropriate law enforcement agencies are notified pursuant to SORA. Where the risk of repeat offense is moderate, a level two designation (+75 to +105) is assigned, and the appropriate law enforcement agencies “may disseminate relevant information which may include approximate address based on sex crimes offender’s zip code, a photograph of the offender, background information including the offender’s crime of conviction, modus of operation, type of victim targeted and the description of special conditions imposed on the offender to any entity with vulnerable populations” and “any entity receiving information on a sex offender may disclose or further disseminate such information at their discretion.” Where the risk of repeat offense is high, a level three designation (+110 to +300) is assigned, and the sex offender is deemed a “sexually violent predator.” In addition to all the requirements of a level two assignment, a level three sex offender’s exact address may be disseminated, and all of the pertinent information regarding the offender will be made available to the public through a subdirectory.

The RAI is not the sole criterion in determining: whether a defendant is a sex offender or a sexually violent predator”; and “the level of notification.” The sentencing court must also base its determinations on the victim’s statement and any materials submitted by the sex offender. Moreover, the sex offender must be allowed to appear and be heard. As clearly stated in the Risk Assessment Guidelines and Commentary of SORA, the risk factor calculated under the RAI is merely presumptive. If ‘special circumstances’ warrant a departure, the Court may depart from it. This ability to depart is based on the recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Thus, a court is permitted to bring its sound judgment and expertise to bear on an otherwise coldly objective exercise which seeks to quantify that which may prove to be highly subjective. However, in People v. Ross, 1996, the court held that, “because the hearing was an ‘administrative function,’ it should ‘review the Board’s recommendations only for arbitrariness and capriciousness and otherwise uphold them.”

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