New York Criminal Lawyer Blog
In July 2010, the Attorney General, filed a petition contending that Respondent is a detained sex offender who has a mental abnormality, as that term is defined in Article 10 of the New York State Mental Hygiene Law (“MHL” or “Article 10”), § 10.03, such that Respondent should be confined or supervised by the Office of Mental Health once his prison sentence is completed.
A Bronx County Criminal attorney said that, in July 1995, Respondent pled guilty to two counts of Robbery in the First Degree, PL 160.15(3), one count of Attempted Robbery in the First Degree, and one count of Escape in the First Degree, each charged out of four separate dockets. Thereafter, Respondent was sentenced on those separate dockets to three indeterminate terms of incarceration in a New York State Correctional Facility from 8 to 16 years, and one indeterminate term of incarceration of 2 to 4 years, with all sentences to run concurrently.
Respondent, who was incarcerated had served almost 15 years of his concurrent sentences and was nearing the end of his term of imprisonment when the Attorney General filed the petition at issue in July 2010.
The petition alleges that the attempted robbery and one of the first degree robbery crimes for which Defendant was convicted were sexually motivated and therefore Respondent is subject to the provisions of Article 10 of the Mental Hygiene Law. The Attorney General filed a petition seeking a determination that Respondent is a detained sex offender who has a mental abnormality such that he should be subject to Article 10 civil management.
Respondent filed a motion to dismiss the petition contending that he was not convicted of any sex crime and a provision that would allow a jury to determine whether Respondent’s robbery and attempted robbery convictions were “sexually motivated” is unconstitutional in that it violates the Ex Post Facto Clause of the United States Constitution. Respondent asserts that Section 10.07(c), the relevant provision of the statute, and its concomitant definitional paragraphs 1 serve to “retroactively transform” a non-sex crimes into a new “sexually motivated felony” and that it increases the punishment for the prior crime.
As set forth further below, the Court is constrained to follow the precedent established by the Supreme Court.
The United States Supreme Court and the New York Court of Appeals have decided several cases that are relevant to the issues presented by Respondent in challenging the constitutionality of Section 10.07(c). In addition, Section 10.07(c), which applies to persons who committed certain crimes prior to the enactment of SOMTA, already has been the subject of constitutional analysis by both state and federal courts in New York.
In a case, the United States Supreme Court held that a civil commitment proceeding can in no sense be equated with a criminal proceeding. There, the U.S. Supreme Court upheld the clear and convincing standard of proof required by the Texas statute in civil confinement proceedings for the mentally ill, finding that, unlike in a criminal commitment proceeding, the state’s power in a civil commitment proceeding is not exercised in a punitive sense. The Court noted that, historically, the standard of proof of beyond a reasonable doubt has been reserved for criminal cases and that the weighing of the interests of the state against those of the person(s) subject to the statute is different in a civil context than in a criminal context.
In 1997, in another case, the Supreme Court upheld a comparable Kansas civil commitment statute for sex offenders, explicitly rejecting the assertion that the statute violated the Ex Post Facto Clause of the U.S. Constitution. There, the Court found that the Kansas sex offender civil commitment statute — which is similar to New York’s statutory scheme – raised no ex post facto issues because the statute was civil in nature and imposed no retroactive punishment.
If the Court finds that the Legislature intended to establish a civil proceeding, the inquiry must continue. The next step requires the court to determine whether the statute is so punitive, either in purpose or in effect, as to negate the intended civil purpose.
In a later case, the Supreme Court held that, in this second step of the inquiry, a court should be guided by the seven factors which it had first outlined in an early case: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only upon a finding of science; (4) whether its operation will promote traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.
The Ex Post Facto Clause of the Constitution of the United States provides, in relevant part, that “no ex post facto law shall be passed.” The United States Supreme Court has defined an ex post facto law as one which “punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crimes of any defense available according to law at the time when the act was committed.
As set forth below, the Court finds that Section10.07(c), which provides that persons who committed felony that were not sex offenses before SOMTA may be subject to the civil management provisions of SOMTA, does not violate the Ex Post Facto Clause.
Even though, as noted below, the Court finds that the Legislature’s intent was to establish a statute civil in nature, the inquiry does not end there. The Court must also determine, even if the intent was civil, whether the statute is so punitive, either in purpose or in effect, as to negate the State’s intent that it be a civil proceeding. Only the “clearest proof” will be sufficient to overcome the presumption that a statute by which the Legislature intended to establish a civil process is actually criminal in nature.
A man pleaded guilty to the crime of sexual abuse in the first degree and was sentenced to seven years in prison and five years of post-release supervision. The board of examiners of sex offender recommended that the man be classified as a risk level three sex offender and, following a hearing, the court agree to the board’s recommendation. However, the man contested the decision.
The man contends that the court erred in considering his two prior convictions for sex crimes because he was not required to register as a sex offender. He further contends that it was improper for the court to score the prior convictions against him by the addition of 30 points for risk factor 9 on the risk assessment instrument, while at the same time using the said convictions as override factors that presumptively placed him at a risk level three classification.
But, the court avers that the man’s assertions were all without merit. Based on records, the court have previously determined that, where the prior felony conviction is for a sex crimes, such conviction may be used as both an override factor and a basis upon which to add 30 points for risk factor 9 on the risk assessment instrument.
The court also found unavailing the man’s contention that the court erred in adding 15 points for risk factor 11 indicating a history of drug or alcohol abuse on the risk assessment instrument. Sources revealed that the man’s presentence investigation report reveals that he was drunk at the time of the instant offense and, further, that he has previously used marihuana and crack cocaine and is now in recovery after completing a drug treatment program.
Consequently, the court did not err in finding that a downward departure from the assessed presumptive risk level was not warranted.
In a related court case, another man was convicted of two counts of promoting prostitution in the second degree and one count of promoting prostitution in the third degree. He was sentenced to an aggregate term of imprisonment of 7 1/3 to 22 years and was paroled.
Subsequently, he was convicted of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree. He was then sentenced to a prison term of 15 to 30 years, and he was required to also serve the remainder of his previous sentence.
Later, as the man was to be paroled, he received notification that he was to be assessed and assigned a final sex offender risk level determination. He appeared in court with his attorney, waived a hearing and stipulated to a risk level two assessment. When he later moved to withdraw the waiver and consent, the court denied his motion. The man appeals from the order assessing him as a risk level two sex offender, as well as from the denial of his motion to withdraw.
He also contends that the requirement that he register under sex offender registration act violates both his substantive due process rights and his rights under the equal protection clause because he is being released as a drug offender, not a sex offender. The complainant however contends that he is subject to the act through the application of the law.
The court further rejects the man’s assertion of ineffective assistance of counsel. Further, in view of the situation at the time of the representation, the court found that the man was provided with meaningful representation. He and his attorney were aware that the board of examiners of sex offenders had recommended that he be assessed as a risk level three sex offender.
If you are not satisfied with your legal representative, you can seek help from the New York Criminal Lawyer. You can also hire the New York City Sex Crime Attorney to resolve your issues regarding sexual abuse or violence. Stephen Bilkis and Associates can certainly provide you with superb legal representation.