New York Criminal Lawyer Blog

In January 2007, a Police undercover detective posing as a participant in an Internet chat room was contacted by another chat room participant with an alias. The defendant engaged in several exchanges with the detective, stating, inter alia, that he wanted to engage in sexual acts with underage children, that he possessed child pornography both at home and at his workplace, and that he shared such pornography through Web sites. He also electronically transmitted a video image and still image of child pornography to the detective.

A New York Sex crimes lawyer said that the Police district identified defendant and obtained a warrant to search his workplace and residence. Thereafter, while executing the warrant, the detective observed defendant using a scree name, and he was arrested. A DVD containing offending images was seized.

In his videotaped statement after arrest, defendant admitted his use of a screen name to view pornographic images of underage girls. Approximately two and a half hours into his interview, he also confessed to having sexual relations with five underage girls, but added that he only saw each of such girls once because he did not perform well and was embarrassed.

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In January 1992, Respondent pleaded guilty to two counts of first-degree robbery, and single counts of first-degree burglary, first-degree rape, and first-degree sodomy. This plea satisfied charges arising from two separate criminal incidents—the robbery of a gas station attendant and a home invasion—for which Respondent was arrested and indicted separately in 1988. He was sentenced to an indeterminate term of imprisonment of 8 to 16 years, running from his arrest.

A New York Criminal attorney said that Respondent was released to parole supervision in July 1999, after serving 11 years and eight months of his sentence. But in May 2000, he was arrested and indicted separately for three robberies. In December 2001, he pleaded guilty to two counts of third-degree robbery, for each of which he was sentenced to an indeterminate term of 2 to 4 years, and one count of criminal possession of a weapon in the fourth degree, for which he was sentenced to prison for one year. He was subsequently released to parole supervision on January 6, 2006.

Respondent was returned to prison for violating the conditions of his parole in July 2006. He was released to parole supervision again in April 2007, but went back to prison after violating the conditions of his parole in August of that year. Respondent was next released to parole supervision in early 2008. He was arrested for the misdemeanor crimes of petit larceny and criminal possession of stolen property in the fifth degree on 2008. Upon pleading guilty to petit larceny, he received a definite sentence, which he served at a local correctional facility. Respondent remained subject to the supervision of the State Division of Parole throughout his time at correctional facility, but his parole was not revoked, apparently because his jail sentence ended days before his parole expiration date: He was freed and his parole supervision ended in November 2008, when he reached the maximum term (20 years) of his consecutive indeterminate sentences.

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Having been released to parole supervision following their incarceration resulting from separate convictions for sexual offenses the defendants individually appeared before the Court, pursuant to Correction Law to obtain judicial determinations as to the level of notification or classification applicable to them.

Prior to the Court’s assessment of their risk levels, criminal defendant one and defendant two, by Notice of Motion challenged the constitutionality of SORA. These motions, argued within two days of each other, have now been consolidated for purposes of this decision because they raise identical legal issues. Supported by a brief affirmation of the Assistant Public Defender appearing as counsel for both defendants and relying wholly upon the Judge’s decision, each defendant maintains that, as it applies to him, SORA is unconstitutional in that it violates the Ex Post Facto Clause of the United States Constitution. The Attorney General, in opposition, while conceding the Act’s retrospectivity asserts that it does not implicate the Ex Post Facto Clause because the statute is remedial and not punitive.

The salient provisions of the statute, as it pertains to the defendants’ ex post facto claims, must initially be summarized. The Act requires those individuals convicted of designated offenses, principally sex crimes offenses, to register with the Division of Criminal Justice Services (DCJS) ten days after their discharge from prison, or their release or parole. Verification by the sex offenders of their addresses and any relocation by them is required for at least ten years unless the court grants relief from the registration requirement. A sex offender’s failure to register is punishable as a misdemeanor for the first offense with any subsequent failure to do so constituting a Class D Felony. Additionally, any failure to register may constitute necessary grounds for a parole revocation.

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A New York Criminal Lawyer said that, in 1990, defendant pleaded guilty to rape in the first degree in satisfaction of a series of charges relating to a 1988 incident in which he pulled a stranger into an abandoned van and raped her. The victim managed to escape and flag down a passing police officer and defendant was arrested at the scene. At a SORA redetermination hearing in February 2006, defendant was adjudicated a level two risk—that is, a moderate risk of re-offense—based, in part, on the assessment of 30 points under factor 1 of the Risk Assessment Instrument (RAI) for having been armed with a dangerous instrument at the time of the rape. To establish defendant’s possession of a dangerous instrument, the District Attorney relied on three documents that are apparently used internally by the District Attorney’s office: a Data Analysis Form, a Grand Jury Synopsis Sheet and an Early Case Assessment Bureau Data Sheet.3 Various entries on these forms indicated that, in the course of the incident, defendant had threatened the victim with a “chrome strip” or “piece of metal”—a dangerous instrument.

A New York Sex Crimes Lawyer said that, defense counsel objected to the District Attorney’s reliance on these unsworn, unsigned documents, contending they did not constitute “reliable hearsay” under Correction Law § 168-n (3) and were therefore inadmissible at the SORA proceeding. Defendant did not, however, testify at the hearing, nor did he offer any evidence rebutting the dangerous instrument allegations. Without requiring the People to offer foundation evidence, Supreme Court relied on the documents, along with the indictment charging defendant with a weapon possession offense, to sustain the assessment of 30 points. This brought defendant within the moderate risk category (75 to 105 points) and the court therefore adjudicated defendant a level two offender. Absent the assessment of 30 points, defendant would have fallen within the presumptive level one, low risk category.

A divided Appellate Division affirmed the level two designation, concurring with Supreme Court that the internal documents of the District Attorney’s office constituted reliable hearsay admissible at a SORA proceeding.

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In this criminal case, the Court consider whether there is sufficient evidence to support a finding that the subject children are neglected pursuant to article 10 of the Family Court Act.

A New York Criminal attorney said that In October 2007, respondent father pleaded guilty to rape in the second degree, engaging in sexual intercourse with a person less than 15 years of age, and patronizing a prostitute in the third degree, which at the time of his conviction was defined as patronizing a prostitute less than 17 years of age. He was sentenced to one year imprisonment, and was released on time served. The court adjudicated father a level three sex offender under the Sex Offender Registration Act (SORA), but he was never ordered to attend any sex offender treatment. Father returned home, where he lived with his wife and their five children, then between the ages of four and 14.

In November 2007, the Dutchess County Department of Social Services (DSS) filed neglect petitions pursuant to Family Court Act article 10 against both parents. As relevant here, the petitions alleged that father neglected the children because he was an “untreated” sex offender whose crimes involved victims between 13 and 15 years old 1. Mother allegedly “failed to protect the children” from father. DSS sought to have the children adjudicated neglected, both parents ordered into a sex offender relapse intervention program, and a temporary order of protection issued against father on the children’s behalf.

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A Queens Criminal Lawyer said that, the defendant is a 16-year old with no criminal history who is charged with the offense of loitering for the purpose of prostitution. The charge is a non-criminal violation punishable by no more than fifteen days jail. When she appeared before the arraignment part she was also the subject of a warrant that had issued out of Family Court. The accusatory instrument pertinently alleges that the Police Officer observed the defendant remain in or wander about a public place for twenty minutes, during which defendant repeatedly beckoned to passers-by and stopped two passers-by, engaging in conversation with said passers-by; stop only male passers-by and defendant did not beckon to or converse with female passers-by who passed by during the same period; standing in the middle of the road while beckoning to motorists. Defendant stated, in substance, “I was coming from a party with my cousin.”

A Queens Sex Crimes Lawyer said that, at defendant’s arraignment, I addressed sua sponte whether I should dismiss this prosecution both as an exercise of my interests-of-justice power and in light of the recently enacted Safe Harbour for Exploited Children Act (the “Safe Harbour Act”), which I read to express the intent of the Legislature that 16- and 17-year-olds who are charged with prostitution offenses should be referred to Family Court rather than prosecuted criminally. The People requested an opportunity to address my proposed dismissal in writing, even though I noted that the legislative sponsors of the Safe Harbour Act believed that the mere pendency of criminal charges against these children was itself harmful: Arresting, prosecuting and incarcerating victimized youth serves to re-traumatize them and to increase their feelings of low self-esteem. This only makes the process of recovery more difficult. Appropriate services for sexually exploited youth do not exist in the juvenile justice system and both federal and international law recognize that sexually exploited youth are the victims of sex crimes and should be treated as such. Therefore, sexually exploited youth should not be prosecuted under the Penal Law for acts of prostitution. Instead services should be created to meet the needs of these youth outside of the justice system. Sexually exploited youth deserve the protection and services of the family court through processes in place for persons in need of supervision, including diversion, crisis intervention, counseling, and emergency and long term housing services.

The issue in this case is whether defendant is liable for the offense of loitering for the purpose of prostitution.

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A man was indicted and charged with the crimes of sodomy in the first degree, robbery in the first degree, sexual abuse in the first degree and two counts of criminal possession of a weapon in the fourth degree. The said crimes were committed but the man was not arrested until more than three years later.

The man was then tried for the crimes charged. A mistrial resulted because of a deadlocked jury which was reported to have said that its final vote was 10 to 2 for acquittal. The case consisted essentially of one-witness identification by the victim of the crime. A corporeal identification of the man was first made by the witness, more than three and a half years after the crime was committed, following the photo identification.

In preparing for a re-trial, the attorney of the man, who was newly retained after the first trial, requested the prosecution to produce certain evidence. The request was based upon the official police report prepared and signed by a detective. According to the report, the complainant struggled with her assailant and, in the course of the struggle the assailant cut his hand with his own knife.

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