New York Criminal Lawyer Blog

This is a proceeding wherein the defendant, MW, moves, pursuant to CPL § 410.90(1), for an order granting early termination of his ten-year sentence of probation, on the ground that he is rehabilitated.

On 10 May 2012, the court held a hearing wherein Rabbi EZ testified on defendant’s behalf, as did defendant. The court finds Rabbi EZ to be a credible witness but rejects his conclusion that defendant’s practice of Orthodox Judaism nearly eliminates the risk that defendant will commit future sexual assault and obviates the need for ongoing monitoring of defendant by the Department of Probation.

The court is faced with the task of determining whether defendant is rehabilitated and whether continued supervision is warranted. In order to make that assessment, the defendant’s current “conduct and condition” (CPL § 410.90[3][a] ) as compared to his status in 2004 shall be considered. Accordingly, I have examined the information available to the sentencing court eight years ago (gleaned from transcripts and other court records), along with the evidence presented at the hearing of this motion. Following are my findings of fact and conclusions of law.

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The Court conducted a SORA risk assessment hearing in this criminal case. Defendant was convicted by plea of guilty in July of 2009 of one count of possession of child pornography under federal law for which he received a sentence of two years imprisonment and five years of supervised release. Defendant was apprehended in a “sting” operation in which he responded to a solicitation to buy child pornographic videos by postal inspectors. He was subsequently arrested and a search of his home computer uncovered 300–600 images primarily of pre-pubescent girls clothed, naked or being sexual abuse. He was released from prison to federal supervised release in December of 2011.

A New York Child pornography attorney said that defendant is 33 years old and has had no other contacts with the criminal justice system. He has suffered from severe problems with depression and social anxiety arising from prior physical abuse by his father. Psychiatric evaluations indicated that he posed little risk of committing a contact sex offense. His prospects for committing another child molestation crime, however, were less certain. Defendant’s counsel argued that the Defendant did not view the child pornographic images on his computer for sexual pleasure but rather because he identified with the pain and abuse the children in the videos had suffered. In the Court’s view, however, the evidence indicated that the Defendant also may well have been motivated at least in part by sexual desire.

The evidence indicated that although defendant could not be diagnosed with pedophilia, such a diagnosis could also not be ruled out. Defendant has expressed remorse for his crime. He currently lives and cares for his ailing mother in public housing but would apparently have to move out of his mother’s apartment if he were designated as anything other than a level 1 offender. He has been complying with the requirements of his supervision.

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This is a proceeding wherein the State of New York moves to establish probable cause to believe that K.A. is a “sex offender requiring civil management” pursuant to Mental Hygiene Law (“MHL”) Article 10, §10.06(k). K.A. opposes the motion.

Mental Hygiene Law Article 10 provides that after a case review team, consisting of at least two mental-health professionals, finds that an individual is “a sex offender requiring civil management,” the Attorney General may file a sex offender civil management petition in Supreme Court. The petition must “contain a statement or statements alleging facts of an evidentiary character tending to support the allegation that the respondent is a sex offender requiring civil management.

After a burglary petition is filed, the act directs that Supreme Court “shall conduct a hearing without a jury to determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management.”

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A New York Sex Crimes Lawyer said that, by indictment filed on February 6, 2007, first defendant was charged with rape in the second degree, endangering the welfare of a child, and unlawfully dealing with a child in the first degree (two counts) for providing alcohol to underage children and having sex with a 14-year-old boy. First defendant was a 34-year-old mother of six in September 2006, when the events underlying the indictment took place. After unsuccessfully moving to suppress a statement in which she made an admission, defendant pleaded guilty on August 16, 2007 to one count of third-degree rape in exchange for a sentence of 1½ to 3 years in prison. During the plea colloquy, defendant told County Court that she was satisfied with her attorney. The judge did not inform her that she would have to register as a sex offender under the Sex Offender Registration Act (SORA) as a consequence of her conviction.

A New York Criminal Lawyer said that, the County Court denied her application. He advised her, however, that she could later move for post conviction relief, for which he would assign her new counsel. Next, the judge sentenced her as promised. The clerk then brought up the sex offender registration fee of $50 and the supplemental sex offender fee of $1,000, which the judge imposed; and the prosecutor asked the judge to certify her as a sex crime offender, which he did. On appeal to the Appellate Division, defendant argued that County Court should have conducted an inquiry after she moved to withdraw her guilty plea on conflict-of-interest grounds; and that her guilty plea was involuntary because the judge did not tell her that she would have to register as a sex offender.

A New York Criminal Lawyer said that, by indictment filed on October 5, 2006, second defendant who was then 39 years old, was charged with one count of course of sexual conduct against a child in the first degree and one count of first-degree rape , based on allegations that he sexually abused a young girl from the age of seven until she reported the abuse at the age of 10. On April 10, 2007, second defendant pleaded guilty to one count of course of sexual conduct against a child in the second degree in exchange for a split sentence of six months in jail and 10 years of probation. At the time, he resided with his girlfriend and several children (although not the alleged victim) younger than 18 years old. The judge did not mention any particular potential conditions of probation during the plea colloquy.

Defendant, in February of 1995, in the Supreme Court, Suffolk County, entered pleas of guilty to sodomy in the second degree and sexual abuse in the first degree. The initial charges arose when defendant, during the summer of 1992, lured two young boys into his home for the purpose of engaging in sexual relations. The defendant took photographs of the victims.

A New York Criminal lawyer said that in January 1996, while defendant remained on probation, the Sex Offender Registration Act (hereafter referred to as SORA), became effective. The act requires convicted sex offenders, including those on probation at the time of its enactment, to register with the Department of Criminal Justice Services. Sodomy in the second is designated a “sex offense” while sexual abuse in the first degree is designated a “sexually violent offense”. A “sexually violent predator” is defined as any person convicted of a “sexually violent offense” or a sex crimes offender who suffers from a mental abnormality that makes such person likely to engage in predatory sexual conduct.

The law establishes three levels of community notification. A level one designation is the lowest level and provides for information to be given only to the enforcement agencies having jurisdiction over the individual. A level two, or moderate, designation provides notification similar to level one along with authorization to said agencies to disseminate relevant information including approximate address based on zip code, a photograph, background of the crime, type of victim and any special conditions imposed on the offender to any entity with vulnerable populations related to the nature of the offense committed by such sex offender. Level three, the high risk category, provides for the dissemination of the same information as for level two offenders, as well as the dissemination of the offender’s exact address. In addition, the information is required to be recorded in a subdirectory which, upon request, will be made available to the public.

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