Articles Posted in Sex Crimes

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A Kings Criminal Lawyer said that, defendant moves pursuant to CPL 440.10 to vacate his judgment of conviction on the grounds that, unbeknownst to Defendant, the complainant had recanted her accusation both to the court and the district attorney’s office prior to the entry of Defendant’s plea of guilty, and the prosecutor’s failure to disclose this information constituted a Brady violation; that such recantation constitutes newly discovered evidence warranting vacatur of the conviction; that Defendant’s plea of guilty was involuntary because he was not aware that he would be required to register as a sex offender; and that his counsel was ineffective in that he prevented the judge at arraignment from dismissing the charges.

A Kings Sex Crimes Lawyer said that, in their affirmation in opposition to Defendant’s motion to vacate judgment, the People assert that in preparing their response to the motion, they learned that the files of the District Attorney’s office pertaining to this case have been destroyed and that the court file has been lost and is therefore unavailable. The People were, however, able to obtain the pre-sentence report. The People’s affirmation is based on information from records and files of the New York State Division of Parole, the New York City Police Department, the Florida Sex Offender Registry, the United States Attorney’s Office for the Southern District of Florida, and upon conversations with individuals from the U.S. Attorney’s office, the NYS Office of Sex Offender Management and the NYS Department of Correctional Services.

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A man, who is an inmate at the correctional facility, is challenging his opponents about their failure to place him in a sex offender counseling and treatment program. The court then issued an order to show cause, and has received and reviewed the opponent’s answer and return, as well as the man’s reply.

In response to its letter order, the court has also received and reviewed an additional set of exhibits, submitted on behalf of the man’s opponents.

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The defendant was a remedial math teacher at Glenwood Elementary School in Vestal, New York at the time of the alleged criminal incidents. Official concern about his classroom conduct was aroused when the younger brother of one of defendant’s former pupils, MM, told his mother that he had heard about a teacher who puts his hands down boys’ pants. When questioned by his mother, he confirmed that he had been fondled by defendant and that defendant had put his hands down other boys’ pants as well.

Thereafter, Mrs. L. sought to confirm the allegation by contacting the mother of another boy, JJ, who had been in defendant’s class with MM. The next morning, MM and JJ discussed the matter on the school bus for rumors about defendant’s misconduct had already spread to the school and reached the principal’s office by the time Mrs. L. contacted him. Within a few weeks, the police became involved and launched a wider investigation into defendant’s conduct. Within a three-week period, the police had obtained inculpatory evidence from eight boys, all of whom were defendant’s students.

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Respondent now moves to dismiss this action (for civil management pursuant to New York Mental Hygiene Law Section 10.06(a)), “based upon the constitutionally flawed structure of Article 10 and its flawed application to Respondent.”

A New York Sex Crime Lawyer said that, on March 14, 2007, former Governor Spitzer signed the Sex Offender Management and Treatment Act (“SOMTA”) (thereby adding Article 10 of the New York Mental Hygiene Law (“MHL”), creating a new legal mechanism to address the problem of managing repeat sexual offenders. Although New York already had a statute addressing the involuntary commitment of those determined to be “mentally ill”, the New York Legislature found that “recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management.” In extreme cases (i.e., those involving the most dangerous recidivistic sex offenders), the Legislature determined that confinement would be extended by civil process, in order to provide these individuals with such treatment and to protect the public from their recidivist conduct. It is beyond cavil that individuals who are mentally ill and dangerous, and predisposed to committing sexual offenses, pose serious risks to our communities. Nevertheless, in the case of confinement, due process “requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.”

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A man pleaded guilty in the United States District Court to an indictment charging a federal class C felony, carrying a potential punishment of more than one-year imprisonment. The indictment charged that he attempted to purchase videotapes depicting child pornography. The underlying facts indicate that the man, using a computer, ordered tapes which depicted sex acts involving children ages 5, 6 and 14 years old.

Based upon such conviction, the New York State Board of Examiners of Sex Offenders, acting pursuant to the New York Sex Offender Registration Act (SORA), Correction Law, determined that the man was required to register in New York State as a sex offender, and so notified him. The man has challenged the applicability of SORA to him on the ground that the federal conviction does not include all of the essential elements of the applicable designated felony as set forth in SORA.

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An 18-year-old girl complained that she had been raped by approximately four military personnel in an apartment. The allegations were thoroughly investigated by army investigators in conjunction with local police.

One of the military personnel was not identified by the complainant in a lineup, and medical examination and forensic evidence from the scene failed to corroborate the allegations against him, but he gave a statement admitting that he engaged in consensual oral sodomy and sexual intercourse with the complainant.

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“There is a strong presumption that legislative enactments are constitutional”. “While the presumption is not irrefutable, parties challenging a duly enacted statute face the initial burden of demonstrating the statute’s invalidity ‘beyond a reasonable doubt’ ”

The due process challenge advanced by respondent concerns the procedure used to secure his commitment. “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment”. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner’ “. Due process, however, “is not a technical conception with a fixed content unrelated to time, place and circumstances” “identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail”

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In this Criminal case, the Mental Hygiene Law article 10 as applied to persons such as respondent who were convicted of certain designated felonies that were sexually motivated and were committed before the effective date of article 10 (§ 10.03[f], [g] [4] ). Because sexual motivation was not an element of the underlying designated felonies, article 10 requires that the sexual motivation be established at the civil commitment trial (§ 10.07[c] ), where the standard of proof is clear and convincing evidence. Respondent contends that the application of the clear and convincing standard instead of the reasonable doubt standard to the determination of the issue of sexual motivation violates his constitutional rights to due process of law and equal protection of the laws.

A New York Criminal attorney said that, the New York Legislature enacted the Sex Offender Management and Treatment Act. Section 10.01 of the Mental Hygiene Law, entitled “Legislative findings,” states that the Legislature finds “[t]hat recidivistic sex crimes offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management. Civil and criminal processes have distinct but overlapping goals, and both should be part of an integrated approach that is based on evolving scientific understanding, flexible enough to respond to current needs of individual offenders, and sufficient to provide meaningful treatment and to protect the public.”

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A New York Criminal Lawyer said that, appellants have been convicted under section 484-h of the Penal Law, Consol.Laws, c. 40 of selling to a minor under 18 years of age a copy of a book entitled ‘Memoirs of a Woman of Pleasure’. Another case, decided at the same time, involves whether this book is obscene under section 1141 of the Penal Law. That question is not before the court upon this appeal. Both counsel for the appellant and the Assistant District Attorney concede that the conviction of these defendants does not depend upon any finding or conclusion that this book is obscene. The determination that the book is not obscene therefore does not exonerate these defendants from the present charge. Even if the book is not obscene within the meaning of the Constitution, the narrative is mainly concerned with accounts of extra-marital sexual relationships.

A New York Sex Crimes Lawyer said that, the conviction of defendants is under that portion of section 484-h of the Penal Law which purports to prohibit the sale to a minor under 18 years of age of ‘any book the cover or content of which exploits, is devoted to, or is principally made up of descriptions of illicit sex crime or sexual immorality’. The constitutional attack on this statutory provision is based on the grounds that it abridges freedom of speech and of the press in violation of the First Amendment to the Constitution of the United States and that it violates the Fourteenth Amendment by denying due process of law in that the language is too vague for a criminal statute.

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