New York Criminal Lawyer Blog
The Facts:
On 15 November 1988, the respondent was arrested in Kings County and subsequently indicted for robbery in the first degree and related offenses. A New York Drug Possession Lawyer said on 15 November 1989, he entered a plea of guilty to attempted robbery in the first degree. Sentencing was scheduled for 9 January 1990, at which time the respondent failed to appear and a warrant was ordered.
Subsequent to the issuance of the Kings County warrant, the respondent was arrested in North Carolina and charged with having sexual contact with four children. A New York Drug Possession Lawyer said on 25 January 1991, following a three-day trial, he was convicted of one count of first degree sex offense and related charges and was sentenced to life in prison.
On 23 May 1991, following a second trial, he was convicted of two counts of first degree sex offense and related charges and was sentenced to two additional terms of life in prison plus 60 years.
Both convictions were based solely on testimonial evidence from the children, with no physical or medical evidence being introduced at trial.
The primary witnesses at both trials were 3 of the victims. Each of the victims testified to nonconsensual penis/anal contact with the respondent. A Nassau County Drug Possession Lawyer, one of the victims testified, additionally, to observing the respondent performing anal intercourse on another child who never testified at trial due to hearing and speech disabilities. The conviction for the later allegation was based solely on the testimony of one of the victims. All of the complaining witnesses were under 12 years of age at the time of the alleged sexual contacts.
Fourteen additional witnesses testified at the trials to witnessing rapes or other sexual abuse, all of which witnesses were children of various ages.
The respondent maintained his innocence throughout his years in prison and 12 years later, in 2003, the North Carolina Center for Actual Innocence (the Center) attempted to locate and interview the children, now adults, who testified at his trial.
The Center managed to locate the three primary witnesses and 12 of the 14 additional witnesses, all of whom have recanted. Queen Drug Possession Lawyer the three primary witnesses have submitted affidavits in which they have admitted lying on the stand in order to convict someone whom rumors in the community had singled out as the rapist. The affidavit of one of the victims who claimed to have witnessed the sexual contact of defendant with another victim further recites that his testimony in 1991was also fabricated. Copies of these affidavits were submitted to the court and there is no dispute as to their authenticity; the People did not contest the accuracy of their recantations.
Based on the aforesaid recanted testimony and newly discovered exculpatory evidence, the respondent’s North Carolina attorneys filed a motion for appropriate relief on 28 July 2003, seeking to exonerate the respondent. During the pendency of this motion, the North Carolina Union County District Attorney offered to consent to the convictions being vacated in return for a plea to lesser charges for which the respondent would receive a time served sentence.
The aforesaid offer was accepted by the respondent. It is undisputed that his attorneys recommended that he accept this offer. Their fear was that they had no physical evidence to establish his innocence and that, if a court did not accept the recantation testimony of the 1991 witnesses, the respondent ran the risk of not prevailing on his motion and thereby would spend the rest of his life in prison.
On 24 May 2004, the Superior Court Division of the North Carolina General Court of Justice, Union County, and the District Attorney consented to the 1991 convictions being vacated, thereby reinstating the original charges, and the respondent entered a guilty plea to attempted first degree sex offense and two counts of indecent liberties with a minor with the State dismissing the remaining charges. The respondent was then sentenced to time served and waived extradition to New York State.
Note should be made regarding the respondent’s previous criminal history, in particular, a conviction in North Carolina on 30 June 1977, when the respondent was 16 years of age, by a plea of guilty to crime against nature for which he served 18 months of a four-year sentence. Section 14-177 provided as follows: If any person shall commit the crime against nature, with mankind or beast, he shall be guilty of a felony, and shall be fined or imprisoned in the discretion of the court.
It is the defense’s contention that the charge was premised upon the respondent inserting a fishing pole into the rectum of a pony. To contest this fact, the People have submitted to the court a thesis entitled “Far From the Truth: Uncertain Justice in the Icemorlee Child Sex Abuse Cases” submitted by a graduate student in journalism at the University of North Carolina at Chapel Hill, dated 2002, in which the student recites hearsay conversations with law enforcement agents who state that the respondent was caught having sex with a horse and that he was there raping the complainant’s pony.
The court finds as a matter of fact that the previous conviction was based on the facts as set forth by the respondent, as the People have not established by clear and convincing evidence anything to the contrary.
Upon arrival in New York, the warrant for the 1988 robbery indictment was vacated and that matter was resolved.
Since the respondent is now residing in New York State, the Board has submitted, pursuant to Correction Law, a risk level instrument and case summary.
The case summary, which is part of the court record, in pertinent part, states: Prior to being returned to New York, he had been incarcerated in North Carolina State Prison after being convicted on a number of felony sex abuse charges; he has a prior felony sex offense conviction in North Carolina in 1977 at the age of sixteen; there are no facts currently available surrounding the conviction; he was convicted of the instant sex offense in 1991, and resentenced in 2004.
The summary proceeds to set forth the details of the sex crimes for which he was convicted in 1991; that he was picked out of a photo array and that the case involved 19 reported victims. It further states: In 2004 he was re-sentenced to time served after pleading guilty to two counts of Indecent Liberties with a Minor and one count of Attempted Sex Offense First Degree; his plea covers the sexual abuse of a then twelve year old boy, a five year old male special education student and an eight year old boy.
The risk level instrument, using the facts from the 1991 conviction, as there are no facts set forth in the 2004 plea allocution, finds that the respondent is a risk level three offender.
Thus, the Board recommended that the respondent be designated a predicate sex offender based on the 1977 conviction.
The Ruling:
On the Sex Offender Registration Act:
On 21 January 1996, SORA became effective. SORA established a notification and registration scheme for individuals convicted of certain enumerated sex offenses. Under that scheme, a convicted sex offender is classified into one of three levels based upon the risk that the offender will commit a repeat offense. If the risk of repeat offense is low, the sex offender is designated as a level one offender. For these individuals, SORA requires notification to law enforcement agencies located in the offender’s jurisdiction and annual registration by the offender for a period of 10 years. A Level two classification, which is given to offenders who present a moderate risk of re-offense, also requires law enforcement notification and annual registration for 10 years. In addition, SORA allows law enforcement agencies to notify any entity with vulnerable populations that a convicted level two sex offender resides in the community. Those entities, in turn, may further disseminate that information at their discretion. The highest designation, level three, is given to sex offenders whose risk of a repeat offense is high. Level three offenders must register in person every 90 days for a minimum of 10 years, and potentially for life.
Also, risk level two offenders and risk level three offenders are included in a directory of sex offenders which is made available to the public.
Finally, for all three classification levels, SORA requires that information about the offender be available to any member of the public who calls a designated “900” telephone number.
Pursuant to SORA, the Board has developed guidelines to assess the risk of a repeat offense by a sex offender and the threat that person posed to the public safety.
On the Role of the Court:
It is one of the responsibilities of the Board, applying factors which the Board has adopted, to make a recommendation to the sentencing court as to whether such sex offender warrants the designation of predicate sex offender. In addition, the guidelines shall be applied by the board to make a recommendation to the sentencing court providing for one of the three levels of notification.
In designating an offender as a predicate sex offender, the statutory language clearly places the Board in the position of recommending such designation and the court determining whether the recommendation warrants the designation. If the court determines that an offender is not a predicate sex offender, the Board’s recommendation may be ignored.
In the determination of risk level, the court must operate within one of the three risk levels set forth in the statute. This would fly in the face of the clear statutory language of Correction Law and, additionally, usurp the role of a court in reviewing any administrative agency action. It is certainly within the power of the Legislature to preclude judicial review of agency action and the Legislature has, on rare cases, taken such action. In the absence of a clear legislative intent, however, such preclusion will not be found. No such clear legislative intent is present in Correction Law.
Therefore, the role of the Board is to recommend. It is within the power of the court to make a determination based on that recommendation.
The sentencing court is to use the same factors, as the Board, in making its determination. However, the ability of the sentencing court to depart from the recommendation is premised upon the recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Of course, the expectation is that the instrument will result in the proper classification in most cases so that departures will be the exception, not the rule. Therefore, the 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, not otherwise adequately taken into account by the guidelines.
If either the People or the sex offender disagrees with the Board’s recommendation in the sentencing court, the parties shall be afforded a hearing. In such a hearing, the sentencing court has wide discretion with regard to the conduct of the hearing and the type and nature of the testimony and evidence to be considered. Formal rules of evidence are inapplicable to this type of proceeding and reliable hearsay evidence may be utilized to support the court’s final determination.
At the hearing, the People bear the burden of proving the facts supporting the determination sought by clear and convincing evidence and in making the determinations the court shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations. Facts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be litigated again.
Since the 1991 convictions in this case were vacated with the consent of the North Carolina prosecutor and no facts were adduced at the entry of the plea in 2004, there is a need for the People to shoulder the burden of establishing the facts to support the Board’s recommendation by clear and convincing evidence. The facts cannot be deemed as established.
On the Designation as Predicate Sexual Offender:
A person is a predicate sex offender if he or she has been convicted of an offense set forth in Correction Law and has been previously convicted at any time of any such offenses. The predicate offense in this case is the 1977 conviction of crime against nature.
In order for an out-of-state conviction to qualify as a predicate offense, it must include all of the essential elements of a comparable New York sex offense or a felony in the other jurisdiction for which the offender is required to register in such jurisdiction.
Here, a review of the North Carolina Sex Offender Registration Act discloses that there is no requirement to register for convictions of crime against nature.
The statute of crime against nature has been, over the years, applied to cover conduct constituting anal and oral sexual conduct and sexual conduct with animals. Since the underlying facts of this prior conviction relate to the insertion of a foreign object into the rectum of an animal, the closest analogy to a New York sex crime listed in Correction Law is sexual misconduct, which, in pertinent part, provides that: A person is guilty of sexual misconduct when he or she engages in sexual conduct with an animal; sexual conduct means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact; aggravated sexual contact relates to sexual contacts with children and sexual contact means any touching of the sexual or other intimate parts of a person not married to the actor.
Hence, the North Carolina conviction in 1977, for crime against nature as it relates to the respondent, does not qualify as a predicate offense since it does not include all of the essential elements of a comparable New York sex offense.
The court finds that the respondent is not a predicate sex offender.
On the Duty to Register and Risk Level:
Taking into consideration the recantations by the complaining witnesses together with the recantations of the 12 additional witnesses who testified at both trials in 1991, the lack of any factual allocution at the 2004 plea proceeding, and finally, the circumstances under which that plea was taken, the court finds that there is no clear and convincing evidence that the respondent committed any sex offense warranting registration pursuant to SORA. Such determination is reached with the court being mindful that in the herein state, ordinarily, recantation evidence is inherently unreliable and is insufficient alone to require setting aside a conviction. What takes such recantation evidence out of the realm of inherent unreliability is the North Carolina prosecutor agreeing to vacate convictions which resulted in two life term plus 60-year sentences and allowing the respondent to be at liberty with a “time served” sentence.
Henceforth, the respondent is not required to register as a sex offender.
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