New York Criminal Lawyer Blog
The Facts:
On 2 May 2011, defendant forcibly compelled complaining witness-one to perform oral sex upon him and then forcibly subjected her to anal intercourse.
On 14 May 2011, defendant forcibly touched the breasts of complaining witness-two with his hands and mouth, forcibly compelled her to perform oral sex upon him and then forcibly subjected her to vaginal intercourse.
Subsequently, defendant was indicted of Rape in the First Degree and other charges, including Predatory Sexual Assault.
Defendant moved for a motion to inspect the Grand Jury minutes which was granted by the court. Upon review of the Grand Jury minutes, questions pertaining to the counts of Predatory Sexual Assault were raised.
Following oral argument, the People dismissed Counts One through Four of the indictment, each charging Predatory Sexual Assault, as they related to the underlying offenses committed on 2 May 2011.
Defendant now moves for the dismissal of Counts Twelve through Fifteen of the indictment, each charging Predatory Sexual Assault, as they relate to the underlying offenses committed on 14 May 2011, on the following grounds: that the remaining counts of Predatory Sexual Assault, as they appear in the indictment, fail to state a crime or offense; that the remaining counts of Predatory Sexual Assault cannot be legally amended; that the Predatory Sexual Assault statute was enacted to penalize recidivist behavior; and that the People’s intended use of the Predatory Sexual Assault statute violates defendant’s due process rights.
The People contend that their intended use of the Predatory Sexual Assault statute is appropriate and that Counts Twelve through Fifteen were properly charged to the Grand Jury and correctly worded in the indictment.
On 31 January 2012, defendant’s motion to dismiss was denied.
The Ruling:
A New York Criminal Lawyer said first, defendant contends that the People failed to state a crime or offense in Counts Twelve through Fifteen of the indictment. Since the four counts in question are uniformly worded and defendant’s arguments are exactly the same for each, an analysis of one count is sufficient to address them all.
Count Twelve of the indictment provides: that the Grand Jury of the County of Kings accuses the defendant of the crime of Predatory Sexual Assault committed on or about 14 May 2011 in the County of Kings; that defendant committed the crime of Rape in the First Degree and engaged in a conduct constituting Criminal Sexual Act in the First Degree, namely: contact between the penis of the defendant and the mouth of complaining witness-one.
Notably, courts have long recognized that the indictment as a document has traditionally served several purposes. A Long Island Criminal Lawyer said first, an indictment is considered the necessary method of providing the defendant with fair notice of the accusations made against him in order to allow him to prepare a defense. Second, the indictment provides some means of ensuring that the crime for which the defendant is brought to trial is the one for which he was indicted by the Grand Jury and not some alternative seized upon by the prosecution based upon subsequently discovered evidence. Third, the indictment specifies the crime or crimes for which the defendant has been tried so as to avoid any issue of double jeopardy.
Here, Count Twelve of the indictment tracks the language of the law, Penal Law (“PL) §130.95.
(2).
In order to satisfy the elements of Predatory Sexual Assault, a defendant must commit Rape in the First Degree, Criminal Sexual Act in the First Degree, Aggravated Sexual Abuse in the First Degree, or Course of Sexual Conduct Against a Child in the First Degree against a person and have engaged in a conduct constituting at least one of the same crimes against one or more additional persons.
The court finds that Count Twelve of the indictment adequately sets forth the elements of the crime where it alleges that defendant committed Rape in the First Degree on 14 May 2011 against complaining witness-two and Criminal Sexual Act in the First Degree on 2 May 2011 against complaining witness-one. Count Twelve of the indictment was not charged to the Grand Jury in a vacuum, but along with legally sufficient evidence of Rape in the First Degree committed against complaining-witness-two on 14 May 2011 and Criminal Sexual Act in the First Degree committed against complaining witness-one on 2 May 2011. The evidence presented to the Grand Jury established the facts and sequence of events, allowing the Grand Jury to conclude that there was legally sufficient evidence that defendant committed the offense of Rape in the First Degree against complaining witness-two, having previously committed the offense of Criminal Sexual Act in the First Degree against complaining witness-one. All the elements of Predatory Sexual Assault were established by the evidence presented and the indictment as a document notifies defendant regarding when, where and of what he stands accused.
Furthermore, the indictment includes separate charges for the specific violent sexual offenses committed against each complainant. These charges set forth the specific violent sexual offenses, the specific elements of each offense and the dates upon which they were perpetrated against the respective complainants. A Suffolk County Criminal Lawyer it is the combination of these separately charged, enumerated sex crimes, which act as the underlying offenses and aggravating factors. Consequently, the indictment provides ample notice of all the crimes of which defendant stands accused, including Predatory Sexual Assault.
Second, the defendant contends that the People failed to state a crime or offense in charging Predatory Sexual Assault and must be rejected because defendant is entitled to discovery, in the form of a bill of particulars, which will act to clarify any ambiguities defendant may claim existing in the indictment qua document.
Since the court finds that Counts Twelve through Fifteen adequately state a crime or offense, the indictment appropriately tracks the Predatory Sexual Assault statute, referencing the material elements of the crime in all four counts and providing defendant with adequate notice to prepare a defense. The court’s ruling that Counts Twelve through Fifteen of the indictment adequately state a crime or offense renders the defendant’s second contention moot; that the counts cannot be legally amended.
Third, the defendant contends that, through strict statutory construction and common-sense interpretation, the subject law is intended to penalize recidivist behavior. Although defendant concedes that the subject law is intended to apply to past conduct and requires no convictions, he nevertheless argues that its language prevents its application to two present, separate allegations. Essentially, defendant argues that the subject law is derived from PL §130.95 (2) and must be read in conjunction with another provision of the law, PL §130.95 (3), and therefore can only be applied to convicted juvenile sexual offenders and those defendants who have out-of-state violent sexual felony convictions.
It is well-settled that the common law policy of strictly construing the penal code no longer obtains in the herein State. The Legislature expressly abolished that rule, and ordained instead that the provisions of the Penal Law be interpreted according to the fair import of their terms to promote justice and the object of the law.
In examining statutory construction, the court’s primary obligation is to determine and give effect to the Legislature’s intent. Penal Law statutes are generally to be construed so as to give effect to their most natural and obvious meaning. Penal responsibility cannot be extended beyond the fair scope of the statutory mandate. However, courts are authorized to dispense with hyper-technical or strained interpretations of the Penal Law. Thus, conduct that falls within the plain natural language of a Penal Law provision may be punished as criminal. An examination of Penal Law statutes includes analyzing their plain meaning, legislative intent and underlying sense and purpose.
Here, the applicable Penal Law is a relatively new statute for which there exists little or no legislative history or commentary. Additionally, the court has found no precedent in the case law that specifically addresses the issue of the application of the subject law raised by the defendant.
When the proposed amendment of the Penal Law to include the crime of Predatory Sexual Assault was before the Legislature, the Sponsor’s Memorandum in Support noted that New York State’s enactment and strengthening of laws, such as the Sexual Assault Reform Act of 2000 and the Sex Offender Registration Act, gave the state a package of tough laws to combat sexual assault. Despite such, the memorandum asserts, more needed to be done. The legislative justification was to increase penalties to further deter and punish such crimes.
In sum, it is clear from the plain language of the PL §130.95 (2) and the limited legislative materials available that defendant’s interpretation of its application is flawed. Defendant goes to great lengths to link provisions of the PL §130.95 (2) and §130.95 (3), in order to define and limit the class of sexual offenders to whom PL §130.95 (2) applies. Defendant asserts that this section of the statute should be limited to convicted juvenile sexual offenders and defendants with out-of-state violent sexual felony convictions. However, nothing in the plain language of either section of the statute or the legislative materials allows such an interpretation to give effect to the most natural and obvious meaning of the statute. Indeed, defendant’s interpretation is exactly the strained and hyper-technical exercise courts have eschewed.
Indubitably, the definition of Predatory Sexual Assault is unambiguous in its language and intent. In order to be charged with the crime, a defendant must commit one of the four designated violent sexual felonies, along with one of four aggravating factors. The aggravating factor defined by PL §130.95 (2) is that the defendant has engaged in conduct constituting any one of the same four violent sexual felonies against one or more additional persons. Nothing in the language indicates that this section of the statute is connected to or dependent upon the next section of the statute. In fact, the sections of the statute that defines the four aggravating factors end in the conjunction “or,” which indicates that they are independent factors, commission of any one of which completes the crime of Predatory Sexual Assault. No reasonable interpretation of the subject law would find that it is limited to convicted juvenile sexual offenders and defendants with out-of-state violent sexual felony convictions.
In arguing that the subject law applies only to convicted juvenile sexual offenders and defendants with out-of-state violent sexual felony convictions, defendant not only contradicts his own conclusion that the section does not require a conviction, but further strains the interpretation of the section by insisting that it is inapplicable to two present, separate allegations.
According to defendant, PL §130.95 (2) is designed to prevent recidivism or predator-like conduct and therefore, cannot be charged where defendant is accused of offenses against separate complainants in one accusatory instrument. Defendant’s argument appears to be that Predatory Sexual Assault cannot be established by evidence of predatory sexual behavior. The court finds the argument bereft of merit.
The plain language of the statute defines the aggravating factor as a conduct constituting one of the four violent sexual felonies that make up the underlying offense committed against one or more additional persons. Nothing in the language of the section precludes the presentation of evidence of such defined conduct, perpetrated against multiple complainants, in the same Grand Jury proceeding. To accept defendant’s argument would be to ignore the very essence of the predatory behavior the law seeks to prevent. Nothing in the plain language of the statute or the legislative materials indicates that the legislature would consider a defendant, who commits the violent sexual offenses enumerated in the statute against more than one individual, anything but a sexual predator. The fact that multiple violent sexual offenses against multiple complainants form the basis of a single accusatory instrument does not preclude the application of PL §130.95 (2). On the contrary, such circumstances are precisely the object of the statute.
It should be noted that the temporal implications of the language of PL §130.95(2) must be recognized when charging the crime. The section specifically requires that, at the time of the underlying violent sexual offense, the defendant has engaged in the conduct constituting the aggravating factor. This means that the aggravating factor must precede the underlying offense. Consequently, the People correctly dismissed Counts One through Four of the indictment, due to the fact that the 14 May 2011 offenses could not act as the aggravating factors for the underlying offenses that took place on 2 May 2011. However, nothing in the plain language of the statute prevents the People from charging defendant with Predatory Sexual Assault where the underlying violent sexual offenses took place on 14 May 2011 and the offenses constituting the aggravating factors took place on 2 May 2011.
The court consulted the limited available legislative materials and examined the plain language of the statute in an effort to give appropriate effect to the legislative intent of PL §130.95 (2). The court finds that the language of the statute clearly defines the underlying offenses and aggravating factors that must be demonstrated in order to charge a defendant with Predatory Sexual Assault. The intended purpose of the statute is to define predatory sexual behavior and enhance punishment for predatory sexual assaults. The addition of Predatory Sexual Assault to the Penal Law was part of a larger effort to combat violent sexual crime, which includes the continuing revision and strengthening of existing laws to create a comprehensive system of tough penalties, mandatory registration and ongoing monitoring of sex offenders. In finding that Predatory Sexual Assault may be charged in the case of two present, but separate allegations, provided the offenses that constitute the aggravating factors precede the underlying offenses, the court does not extend penal responsibility beyond the fair scope of the statutory mandate. Such decision interprets the law according to the fair import of its terms to promote justice and the object of the law. The most natural and obvious meaning of the language of the statute leads the court to reject defendant’s hyper-technical and strained interpretation, which would severely limit its application in contradiction to its purpose.
Lastly, the defendant contends that the People are using PL §130.95 (2) as a sentence enhancer in violation of his due process rights. Defendant relies upon the court’s ruling in Morse in support of his contention.
In the cited case, the Court of Appeals found that a defendant convicted of a violent felony offense could not be adjudicated a persistent felony offender, based upon two previous violent felony convictions resulting from pleas on two separate incidents taken on the same day. The Court reasoned that the legislature did not intend the persistent violent felony law to apply unless each of the two or more predicate violent felony convictions, other than the first, was for a felony which occurred after sentence had been imposed for the conviction which preceded it.
The court finds defendant’s reliance upon Morse to be misplaced. Unlike defendant Morse, who faced an enhanced sentence as a persistent felony offender, the defendant here faces Predatory Sexual Assault as a charged crime in a single indictment. Defendant Morse’s sentence depended upon his adjudication as a persistent felony offender by a court, based upon prior felony convictions that were unrelated to his latest conviction. Setting aside whether or not defendant here is a second or persistent felony offender, his sentence cannot be affected as a result of the Predatory Sexual Assault charge unless that charge is proven beyond a reasonable doubt before a trier of fact. Defendant will have the opportunity to defend against the Predatory Sexual Assault charge consistent with due process. Additionally, defendant will have the opportunity to obtain a ruling from the trial court on the charges to be presented to the trier of fact for consideration, thereby resolving any issues regarding potential sentences should he be convicted. Thus, the court rejects defendant’s due process argument.
Henceforth, the court finds that Counts Twelve through Fifteen of the indictment is supported by legally sufficient evidence and does not violate defendant’s due process rights; the defendant’s motion to dismiss Counts Twelve through Fifteen is denied; that the evidence before the Grand Jury was legally sufficient to establish the remaining offenses charged and that the defendant committed said offenses; that the instructions on the law given to the Grand Jury were adequate and legally sufficient; that no procedural flaws or errors support dismissal or reduction of any remaining count or of the indictment. Accordingly, the defendant’s motion to dismiss or reduce the charge is denied.
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