Articles Posted in Sex Crimes

After trial by jury, a man was convicted on a consolidated indictment of promoting prostitution in the first degree, endangering the welfare of a child, sodomy in the second degree and eleven counts of sodomy in the third degree.

He filed an appeal and claims that it was an abuse of discretion for the trial court to have denied his motion, that his due process rights were violated and that the interfering orders secured by the police were invalid because they exceeded the bounds set by the governing federal wiretapping law.

The man was accused of engaging repeatedly in a course of homosexual sodomitic acts on various occasions over a seventeen month period with eight different high school boys each of whom was under the age of seventeen. Despite the fact that it developed at trial that each of the youths had received money from the offender, it was never claimed that force of any kind was employed to obtain their participation. Sources revealed that the accusation embraced a total number of 64 criminal counts.

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This is a proceeding involving Article 10 of the Mental Hygiene Law, enacted in 2007, which provides that certain imprisoned sex crimes offenders may be transferred to mental hospitals, rather than being released, when their prison terms expire. The statute raises important questions concerning the procedural and substantive rights of the prisoners to whom it applies, but those questions are not before us in this case. The court is faced with the issue of whether the statute applies to a particular class of prisoners: those who were incarcerated for violating the conditions of a term of postrelease supervision (PRS) that was improperly added to their sentences by the Department of Correctional Services (DOCS) without court authorization. The court holds that these prisoners are within the coverage of the statute even if the procedure that led to their imprisonment was flawed.

Both of these cases involve men convicted of serious sex crimes – assaults of vulnerable strangers on the street. JJ assaulted a child while HH assaulted a developmentally disabled adult. Both were sentenced to imprisonment. Both were required by statute to be sentenced also to a term of PRS. However, as happened in a number of cases before our decisions in Matter of Garner v. New York State Dept. of Correctional Servs., and People v. Sparber, the sentencing court failed to impose the PRS term. DOCS nevertheless included PRS in its record of each man’s sentence-a practice the court decided in Garner was unlawful.

JJ completed his prison sentence in August 2006, and HH completed his in January 2007. Both men began their improperly-imposed PRS terms-not in the community, but in a psychiatric hospital. Mental Hygiene Law article 10 had not then been enacted, but JJ was involuntarily committed to a hospital under article 9 of the Mental Hygiene Law and HH committed himself voluntarily, also under article 9 of the Mental Hygiene Law § 9.13). Both, while in the hospital, violated the terms of their PRS-JJ by an escape attempt and HH by an assault to a fellow patient-and both were returned to prison.

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This is a proceeding wherein the defendant was charged under Indictment number 98027 with two counts of Sexual Abuse in the First Degree under PL § 130.65, a D violent felony, and Endangering the Welfare of a Child under PL § 260.10, an A misdemeanor.

The defendant pled guilty on 23 January 1998, pursuant to a plea bargain agreement under count one to the lesser charge of Sexual Abuse in the Second Degree under PL § 130.60, an A misdemeanor, and under count three to Endangering the Welfare of a Child under PL § 260.10, an A misdemeanor, in satisfaction of the indictment.

The Court notified the defendant on 11 May 1998, prior to sentence, that based upon his conviction for Sexual Abuse in the Second Degree and in accordance with the public notification and disclosure provisions of the New York State Sex Offender Registration Act. The Court intended at the time of sentence to certify the defendant as a sex offender as required by Correction Law § 168-d and to assign a risk assessment level of 3 to the defendant using override provision (iv) of the Risk Assessment Guidelines established by the Board of Examiners of Sex Offenders pursuant to Correction Law § 168-1(5).

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A man was sentenced to concurrent terms of three years for assault in the second degree and one year for promoting prostitution in the fourth degree. At the time of sentencing, the court did not impose the mandatory period of post-release supervision as required by the law. In spite of a five-year period of post-release supervision was administratively imposed the man was released to post-release supervision. He was then be supervised by the division of parole. Lewd conduct was involved.

Subsequently, the man was charged with violating four conditions of his release to parole supervision and was declared delinquent with respect to his parole obligation. Later, a parole warrant was issued and lodged, and the man was served with a notice of violation and violation of release report on the same date. At his preliminary parole hearing, the hearing officer made a finding of probable reason. The man’s final parole revocation hearing was scheduled and prior to it, the man brought an instant writ alleging that his period of post-release supervision was improper.

The man’s primary argument was based upon the recent decision of previous related case which held in part that post-release supervision is not merely a direct consequence of a determinate sentence but is in fact part of the sentence itself and as such it may only be imposed by the sentencing judge and a nullity if imposed administratively after sentencing. Hence, the man argues that the five-year post-release supervision imposed upon him by the department of correctional was unlawful and therefore the parole violation warrant must be vacated.

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This is a proceeding wherein the petitioner commenced this CPLR article 78 proceeding seeking to annul the determination that he is a sex offender subject to registration pursuant to the Sex Offender Registration Act.

Supreme Court granted the petition and annulled the determination, concluding that petitioner was not subject to SORA’s registration requirements.

The court agrees with respondent that petitioner, who was on probation in Wyoming for sex offenses within the meaning of Correction Law § 168–a(2)(d)(i) on the effective date of SORA, is required to register as a sex offender in New York. Therefore, the court concludes that the judgment should be reversed and the petition dismissed.

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In this Criminal action, Defendant-appellant was charged with multiple petty offenses. None carries a maximum term of incarceration greater than six months upon conviction when prosecuted individually.

A New York Criminal attorney said that Defendant was originally charged, under two separate informations, with multiple misdemeanors and lesser offenses relating to two altercations with his wife. By the time of the trial, the charges remaining on the first information were attempted criminal mischief in the fourth degree and menacing.

These are classified as class B misdemeanor carrying maximum authorized jail sentences of three months. The charges in the second information were reduced to three class B misdemeanors, attempted third degree assault, attempted fourth degree criminal mischief, and attempted second degree criminal contempt, in addition to a single count of harassment. The latter is a violation punishable by a maximum sentence of 15 days and the others, as class B misdemeanors, are punishable by a maximum sentence of up to three months. Upon motion by the People, the informations were consolidated for trial.

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In this criminal case, defendant was arrested and charged with the violation of Penal Law Section 230.00, a class B misdemeanor. A bench trial was held. The People presented the testimony of Police Officer assigned to the Brooklyn South Public Morals Division (BSPMD). He testified that in January 1994, he placed a telephone call to a specific number to set up a “rendezvous” with someone he believed to be engaged in prostitution. That belief was based on a complaint the officer’s unit had received several months before.

A Kings County Criminal attorney said that the Officer testified that after several telephone calls, he was instructed to go to an Avenue. He did so and was met at the door by a female, white, who weighed about 300 pounds and had blond hair. He identified this woman as the defendant. He followed the defendant into the building to apartment. When he got into the apartment, he testified that the defendant told him that it would cost him $100 and that he should get undressed and go to the bedroom. He then asked the woman what he would get for $100 and the woman said a brand. He said that he told the defendant he was not interested in said brand and was told by the defendant that straight sex was $80 and oral sex was $20.

The officer then testified that he refused to undress, and the defendant directed him to go into the bedroom and put on a video while she slipped into something comfortable. The officer testified that in the bedroom were tapes of sex crimes videos and a dildo. The officer put on a tape and then transmitted a code to the arrest team to set into place the apprehension of the defendant. The officer subsequently opened the front door and admitted the arrest team. Defendant then was advised to get dressed and a Detective placed her under arrest for prostitution.

A New York Prostitution Lawyer said that, petitioner is the lessee of the premises at 6693 Broadway, Bronx, New York, which was ordered closed for one year by Police Commissioner Ward, pursuant to the Padlock Law and the regulations promulgated thereunder. The Padlock Law, effective August 6, 1984, authorizes the Police Commissioner to impose sanctions for public nuisances by barring the use of property in violation of penal laws, such as those relating to prostitution, gambling and drugs.

A New York Criminal Lawyer said that, specifically, the Padlock Law defines, as a public nuisance, any building where violations of certain provisions of the Penal Law (such as PL Article 225, relating to gambling) are occurring, and where at least two such criminal convictions have occurred within one year of commencement of proceedings pursuant to section 436-8.1. The law creates a statutory presumption of continuing criminal activity, where an arrest for violation of the relevant provisions was made within thirty days of issuance of notice pursuant to § 436-8.1. The police commissioner’s regulations provide for notice of arrests to the owner of property, informing him that if two or more convictions are obtained within 12 months for such public nuisances, proceedings may be commenced resulting in possible closure of the premises. The proceedings are commenced by service of notice of hearing on the owner, lessor, lessee and mortgagee, pursuant to CPLR Article 3. A public hearing presided over by a hearing officer, employed by the police department, is held to determine whether a public nuisance exists, and to report to the police commissioner with recommendations, either for abatement of any nuisance, or for vacatur of a closing order.

A New York Patronizing Prostitution Lawyer said that, in this case, a hearing was held on March 19, 1985 before Hearing Officer Edward Jordan, who recommended closure of the premises for numerous violations of PL Article 225 relating to gambling (specifically, 11 gambling arrests were made at the premises between March 15, 1984 and January 3, 1985, 10 of which resulted in convictions). The police commissioner later accepted the recommendation and ordered closure for one year. Petitioner admitted running a numbers operation out of the premises, but contended that gambling should not be illegal and in any event does not constitute a public nuisance. Neither of these contentions bears scrutiny. The legislation has resolved the issues, and it is not for the court to substitute its judgment. Nor is there substance to the argument that the premises do not constitute a nuisance because they are located in a relatively unpopulated area. Finally, petitioner’s claim that the closure is invalid because some of the cited convictions were obtained prior to the effective date of the padlock law, is also without merit, inter alia because evidence was submitted relating to five convictions, resulting from arrest at the premises, which took place after the effective date of the statute.

This is a proceeding wherein the defendant, JC, was convicted, upon his plea of guilty, of sexual abuse in the first degree. In evaluating the defendant for registration as a sex offender pursuant to Correction Law article 6–C, the Sex Offender Registration Act, the New York State Board of Examiners of Sex Offenders assessed the defendant as a presumptive level two sex offender based, in part, upon his juvenile delinquency adjudication when he was 13 years old. After a hearing, the Supreme Court granted the People’s application for an upward departure to risk level three.

Herein, the court addresses the issue of whether the Supreme Court’s consideration of the defendant’s juvenile delinquency adjudication was permissible as evidence of the defendant’s age at the time of his first sex offense. For the reasons set forth below, the court concludes that the consideration of the defendant’s juvenile delinquency adjudication was improper.

On 12 January 2009, the Board prepared a Risk Assessment Instrument containing the Board’s recommendation to the Supreme Court regarding the defendant’s appropriate risk level designation under SORA. In the RAI, the Board assessed a total of 80 points, which placed the defendant at risk level two. The points were assessed under five risk factors, as follows: 10 points under risk factor 1 (“Used forcible compulsion”); 10 points under risk factor 2 (“Contact under clothing”); 20 points under risk factor 5 (“Age of victim 11 through 16”); 10 points under risk factor 8 (“Age at first act of sexual misconduct 20 or less”); and 30 points under risk factor 9 (“Prior violent felony, or misdemeanor sex crimes or endangering welfare of a child”).

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In this Criminal case, defendant, a 78 year old man, was convicted by plea of guilty of one count of Assault in the Second Degree and one count of Attempted Sexual Abuse in the First Degree. Thereafter, he was sentenced to a determinate sentence of imprisonment of 5 years with 5 years post-release supervision on the assault count and an indeterminate sentence of 2–4 years incarceration on the sexual abuse count, with those sentences to run concurrently. The Court’s review of the court file for this crime indicates that the Defendant repeatedly struck an 86 year old woman with a blunt object causing lacerations and a loss of consciousness. As the victim lost consciousness, she felt her attacker pull her pants down. When she awoke her pants and shoes had been removed. She had significant bruising on her hands and back and required surgery for an eye injury which occurred during the attack. She identified her attacker as a person she knew from the building she lived in and said he had lived there for about five years.

A New York Sex crimes attorney said that Defendant allegedly told the arresting police officer that he came out to the garden of the senior citizens housing complex where the assault occurred to get drunk and pass out. He also admitted that he knew the victim. When interviewed in preparation for his pre-sentence report, he denied his guilt but said he wanted his guilty plea to stand. He asserted that he had “blacked out” and that someone else had tried to rob the victim. During argument on the Original SORA Decision, the Defendant’s counsel asserted that the evidence against defendant was highly suspect and that despite his guilty plea and the complainant’s grand jury testimony, there was not reliable evidence that Defendant was guilty of a sex crime.

In order for a Defendant to obtain a modification of his risk level under SORA he must demonstrate that such a modification is justified by clear and convincing evidence. The Defendant’s previous RAI score and presumptive override are not any different now than they were at the time of the Original SORA Decision. To lower the Defendant’s risk level then, the Court would have to find that a departure from the presumptive risk level was warranted. Generally, a court may not depart from the presumptive risk level unless it concludes that there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the RAI.

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