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A New York Criminal Lawyer said this is a proceeding wherein the defendant who pleads guilty to Rape in the Third Degree under Penal Law § 130.25 by way of an Alford-Serrano 2 plea, notwithstanding his claims of innocence, is convicted of a felony. As a result, he is subject to the collateral consequences of that conviction to include being classified under the Sex Offender Registration Act and being subject to take an HIV test upon the request of the victim.

In 2004, the defendant was indicted in a twenty-eight count indictment charging that he engaged in sexual relations with his 15 year old daughter, during a three month period.
The defendant entered into a negotiated Alford-Serrano plea to one count of rape in the third degree with the assistant district attorney, with the knowledge and consent of the victim’s mother. The court in view of the representations of the prosecutor, and the defense along with the victim’s mother, accepted the plea bargain based on the fact that the victim was of limited intelligence who would be unduly traumatized by testifying in court against her father. While the defendant maintained his innocence he claimed that a jury might convict him of rape in the first degree rather than the statutory rape charge to which he pled.

It is the defendant’s argument that since he took an Alford-Serrano plea, whereby he maintained his innocence, yet acknowledged that the prosecutor may have been able to obtain a conviction, it should not be used against him in calculating his classification as a “sex offender” pursuant to the SORA.

Thereafter, a New York Criminal Lawyer said the assistant district attorney moved pursuant to Criminal Procedure Law section 390.15 that the defendant submit to a human immunodeficiency virus test. Attached to the People’s motion was an application for HIV testing signed by the alleged victim. However, the defendant steadfastly refused to take the HIV test on the ground that the defendant still maintains his innocence and no proof otherwise was ever presented to this court. He also argues that the disclosure of a “positive” test result if it occurred would harm his reputation in the community since the victim’s family has in the past proliferated defamatory written materials attacking him and his employer.

It should be noted that defendant who takes an Alford-Serrano plea does not accept responsibility for the offense. Quite the contrary, the defendant here vehemently protested his guilt and maintains his innocence. However, the defendant cannot have it both ways; he cannot maintain innocence and thereby circumvent the collateral consequences of his plea of guilty or the nature of his plea.

A Queens Criminal Lawyer said it should be noted that under the Sex Offender Registration Act, a court must classify the defendant as a “type of” sex offender. In order to classify the defendant a “Sex Offender Registration Act Risk Assessment Instrument” promulgated by the Board of Examiners of Sex Offenders pursuant to Correction Law section 168-l is utilized. The worksheet designates a numerical value to “risk factors” which are then added together. The resulting sum determines the presumption of the defendant’s risk level under the statute. One of the categories of risk is whether the defendant has accepted responsibility for the crime. In the case at bar, the defendant has not accepted responsibility and still maintains his innocence by way of his Alford-Serrano plea. The defendant challenges the court’s assessing of points for not accepting responsibility for the crime.

Pursuant to subdivision three of Correction Law section 168-d, the court conducted an in camera session where counsel for the defendant and the prosecutor were present. The defendant had waived his right to be present. Each side was granted an opportunity to discuss the various factors on the worksheet. Mathematically, the court assessed a presumptive risk factor total of 80 points, including 10 points for “not accepting responsibility for the offense” due to the Alford-Serrano plea and the comments made to probation in the pre-sentence report.

When a defendant enters an Alford-Serrano plea, although he is not admitting to committing the crime in question, that conviction can still be used against him. It was held that the criminal defendant who enters such a plea is no less guilty than one who is convicted of the same charge by a jury or by a conventional guilty plea, and is subject to no less punishment as held in Merchants Mutual Insurance v. Arzillo.

The court holds that even though the defendant did not admit the offense charged, he did plead guilty to it. Therefore his lack of taking responsibility for his actions is a factor rightfully considered by this court in assessing points against a defendant on the SORA worksheet for classification as a sex offender. In short, the defendant cannot have it both ways. He cannot protest his innocence while pleading guilty by way of an Alford-Serrano plea and then claim that no consequences or conditions subsequent to the plea should apply to him.

The defendant opposes the request that he undergo an HIV test on the grounds that such a test (1) violates his Constitutional rights as an unreasonable search and seizure under the Fourth Amendment of the Constitution of the United States, (2) constitutes retroactive punishment and is violative of the ex post facto clause of the United States Constitution; and (3) that the request was not made by the “victim” as that term is defined in Criminal Procedure Law section 390.15 as the defendant never admitted his guilt.

Criminal Procedure Law section 390.15 which took effect on 1 August 1995 directs that where a defendant is convicted of a felony offense enumerated in any section of article one hundred thirty of the penal law and where “sexual intercourse” or “deviate sexual intercourse” was an element of the crime for which the person was convicted, the court must, upon a request of the victim, order that the defendant submit to human immunodeficiency related testing. The court ordered test must then be performed within fifteen days of the order.

CPL § 390.15[1][b] defines a “victim” as the “person with whom the defendant engaged in an act of sexual intercourse or deviate sexual intercourse “. The victim must file the request in writing with the court prior to a conviction or within ten days after the entry of the defendant’s conviction, unless the court allows it to be filed late for good cause shown at any time before sentence is imposed. Additionally, the statute allows a representative of the victim to request the HIV test if the victim is an infant or incompetent person. The court is further directed to conduct a hearing only if necessary to determine if the applicant is the victim of the offense of which the defendant was convicted.

It was held in Skinner v. Railway Labor Executives’ Ass’n. and Johnetta J. that while it is clear that an intrusion into the body for blood is clearly a search under the Fourth Amendment, the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. Whether or not a search is reasonable is judged by balancing its intrusion on the individuals’ Fourth Amendment interests against its promotion of legitimate governmental interests as was also held in Delaware v. Prouse.

What is reasonable depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself. For searches outside the purely criminal context, the U.S. Supreme Court has developed the “special needs” test. In situations where there is a special need, beyond the normal need for law enforcement,’ “then a warrant and probable cause analysis is impracticable.

Under the special needs doctrine a search is not deemed unreasonable if the government’s interest outweighs the individual’s interest in avoiding the search. Therefore, if the government’s interest in ordering the HIV test outweighs the individual’s interest in not taking the test, the search is reasonable.

Although the defendant argues that the disclosure of the test result could harm his reputation in the community, this argument must be weighed against the fact that the order of the court granting such a test and all related papers would be sealed by the court. Additionally, the test results are only given to the person making the application. The person making the request is only permitted to re-disclose the information to her immediate family, guardian, physician, attorney and mental health provider.

Also, the court notes that the procedure itself in obtaining a blood sample is not “brutal,” “offensive” or “shocking to the conscience.”

The defendant claims that the state’s interest in obtaining the results of the HIV test is minimal as it will have no medical utility. Dr. N, a physician associated with the St. Vincent’s Hospital AIDS Center, stated, in an affidavit appended to the motion, that although immediate compulsory testing of a defendant accused of a crime involving sexual intercourse would assist in treating the victim, it is not helpful in this case. He states that while someone can immediately upon infection receive a series of treatments which would prevent the seroconversion process, no such benefit would occur here. The doctor also states that nearly all persons infected by HIV will test positive within six months of infection by the virus. Additionally, the doctor states that in some “isolated cases” the seroconversion process can take as long as one year. Therefore, the doctor concludes that only during this seroconversion “window” of six months to a year is there a great medical utility to know whether or not the defendant was infected with the HIV virus.

In the case at bar, the alleged incidents occurred more than 2 1/2 years ago. Therefore, the doctor concludes, the only reliable test is one which would be performed on the victim herself and that a test on the defendant at such a late date does not have any medical utility.
While the court agrees that scientifically an HIV test of the defendant taken 2 1/2 years after the alleged rape may have limited utility, there is no provision to direct the victim to take an HIV test as that would prove to be more relevant to the victim. However, some courts have concluded that the fact that the test of the assailant’s blood would not be conclusive does not defeat the government’s interest.

The court holds that the government’s interests clearly outweigh the defendant’s right to privacy in this matter. Accordingly, the testing of his blood is not an unreasonable search and seizure.

The defense claims that this law would violate the prohibition of enforcement of ex post facto laws contained in Article 1, section 10 of the U.S. Constitution. It is the defendant’s contention that the statute is penal in nature based on his fear that the victim’s family would proliferate the results of the test in the community and hurt his reputation. It must be said that the defendant’s fear is not unwarranted as the victim’s family did place signs concerning the arrest of the defendant in areas of Staten Island where the defendant works and resides.

The court notes the ruling in People v. McVickers wherein the California Supreme Court en banc held that mandatory AIDS testing did not violate the ex post facto clause of the Constitution. The court’s rationale was that a blood test is hardly “punishment” since such tests have become routine in our lives and the procedure involves no risk, trauma, or pain. Whatever slight discomfort or inconvenience the defendant might experience from the drawing of blood does not rise to the level of punishment. Also, in People v. Doe, the Nassau County Court held that the ex post facto clause was not violated since the statute is intended, not to punish, but to accomplish another legitimate governmental purpose–to ease the trauma of [the] victim of a sex crime with respect to the HIV related disease.

Accordingly, the court finds that the HIV testing statute does not violate the ex post facto clause of the Constitution.

In the case at bar, the defendant is convicted of Rape in the Third Degree and his daughter is the “victim.” The defense states that since there is no evidence that the defendant had sexual relations with his daughter and maintains that he is innocent of the crime there is no “victim.”
The court finds that this is not the case. The court’s discussion of the ramifications of the Alford-Serrano plea discussed above is equally applicable here. The victim’s request made as part of a motion by the People will be treated as made on behalf of the victim.

Therefore, the court holds that the Sex Offender Registration Act Risk Assessment Instrument points allocated against the defendant for failure to take responsibility were proper. Moreover, the request that the defendant be tested for HIV is permissible and constitutional.
Accordingly, the defendant’s motion is denied.
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A New York Criminal Lawyer said the conduct which resulted in the defendant’s designation as a level two sex offender started in early February 2005, when he began communicating over the Internet with an undercover police officer posing as a 14–year–old girl. Using a webcam, the defendant transmitted images of himself masturbating and arranged to meet both this fictitious girl and her supposed 12–year–old friend in New Jersey to engage in sexual activity.

A New York Sex crimes attorney said that the defendant was arrested when he arrived at the designated meeting place, and he subsequently pleaded guilty to interstate travel with intent to engage in illicit sexual conduct with a person under 18 years of age in violation of 18 USC § 2423(b). After the defendant completed his term of imprisonment, the New York State Board of Examiners of Sex Offenders (hereinafter the Board) evaluated him for registration as a sex offender by preparing a risk assessment instrument. The risk assessment instrument assigned the defendant a total of 60 points under risk factors 3 (number of victims), 5 (age of victims), and 7 (relationship with the victims).

A New York Criminal Lawyer said the events which culminated in the defendant’s arrest and conviction began when an undercover police officer signed into an Internet chat room and received an instant message from an individual stating “like to have sex today.” This individual was later identified to be the defendant, a then–38–year–old married man with a baby daughter. Pretending to be a 14–year–old girl from New Jersey, the officer began an online chat with the defendant. During this chat, the defendant asked about her sexual history, and questioned her about her experiences with vaginal, anal, and oral sex.

A Queens Criminal Lawyer said for these acts, the defendant was charged, in a criminal complaint filed in the United States District Court for the District of New Jersey, with the federal offense of interstate travel with intent to engage in illicit sexual conduct with a person under 18 years of age in violation of 18 USC § 2423(b). He subsequently pleaded guilty to the charged offense, and was sentenced to a term of 37 months of imprisonment, to be followed by 15 years of supervised release. The defendant completed his term of imprisonment, and was released to federal supervision. As a condition of his supervision, the defendant was prohibited from possessing, purchasing, or otherwise obtaining access to “any form of computer board, internet, or exchange format involving computers unless specifically approved by the U.S. Probation Office.” He was also required to participate in a mental health program as directed by the U.S. Probation Office.

Initially, the Court we notes that the defendant raised no objection at the SORA hearing to the 60 points scored for risk factors 3, 5, and 7. Accordingly, his contention that no points should have been assessed against him for these risk factors because his victims were fictitious is unpreserved for appellate review. In any event, this contention is without merit, since, for the reasons discussed below, the risk factors at issue here-3, 5, and 7-do not require actual, physical sexual contact between the offender and victim, and assessing the defendant points for these risk factors furthers the purpose for which SORA was enacted.

A Nassau County Criminal Lawyer said the three risk factors for which the defendant was scored 20 points each are all in the category of the risk assessment instrument entitled “Current Offenses,” and relate to the number of victims, the age of the victim or victims, and the defendant’s relationship with the victim or victims. The Guidelines explain that risk factor 3 assesses 20 points where there are two victims, and 30 points where there are three or more victims, because “[t]he existence of multiple victims is indicative of compulsive behavior and is, therefore, a significant factor in assessing the offender’s risk of reoffense and dangerousness”. Further, since offenders who target children as their victims are deemed to be more likely to reoffend, risk factor 5 assesses an offender 20 points where the victim or victims are between the ages of 11 through 16. Risk factor 7 assesses an offender 20 points where the crime was either directed at a stranger, or at a person with whom a relationship had been established for the primary purpose of victimization, since such a situation presents “a heightened concern for public safety and need for community notification”.

State courts in other jurisdictions have also rejected arguments that offenders caught in Internet sting operations by law enforcement officers posing as child victims are exempt from registration as sex offenders. At its core, SORA is a regulatory scheme expressly enacted for the nonpunitive purposes of “protecting communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities’ ability to fight sex crimes”. It would be anomalous to conclude that the defendant can be subjected to criminal penalties for his conduct in traveling across state lines with the intent to engage in sexual activity with fictitious minors, but that the lack of an actual victim precludes the assessment of points under SORA based on the number of his intended victims, the ages of those victims, and his relationship to them. Indeed, when faced with the analogous issue of whether the presumptive override for an offender’s prior sex crimes conviction could apply where one of the felonies involved an undercover officer, rather than an actual underage victim.

The Court recognized that some SORA hearing courts have held that points cannot be scored under risk factor 7 for an offender’s relationship with the victim where the victim is a fictitious persona. In reaching this conclusion in Jones, the County Court reasoned that “there is no support in the Guidelines for the proposition that the term ‘victim’ should encompass virtual identities, where, as here, the person with whom the defendant was communicating was an F.B.I. agent. Stated otherwise, the intent of the offender plays little or no part in making another actor a ‘victim'”. The Court do not find this rationale persuasive. The Guidelines make clear that points are assessed under risk factor 7 because there is a heightened concern for public safety and a greater need for community notification where the offense is directed at a stranger or at a person with whom the offender has established a relationship for the primary purpose of victimization. These concerns are equally applicable where, as here, an offender establishes a relationship with an undercover officer the offender believes to be an actual child victim. Accordingly, we reject the defendant’s argument that the three risk factors at issue here, including risk factor 7, require the existence of an actual victim.

Since there is no dispute that the defendant established a relationship with an individual he believed to be a 14–year–old girl through Internet communications, and that he arranged to meet this supposed 14–year–old and her 12–year–old friend for the purpose of engaging in sexual activity, the Court found that the defendant was properly assessed points under risk factors 3, 5, and 7.

The Court found that the People sustained their burden of establishing, by clear and convincing evidence, the existence of two aggravating factors that heighten the defendant’s risk of reoffense and danger to the community. First, the evidence presented at the SORA hearing demonstrates that the defendant did not merely engage in sexually explicit communications with an individual he believed to be a 14–year–old girl. Rather, he arranged to meet the supposed 14–year–girl and her 12–year–old friend in the parking lot of a fast-food restaurant in New Jersey for the purpose of engaging in sexual activity, and traveled from White Plains to the designated meeting spot to carry out his plan. Although the defendant could not, of course, be scored points on the risk assessment instrument for the degree and extent of his sexual contact with his supposed victims because they were fictitious, his online communications unquestionably demonstrated his intent to engage in sexual activity, including vaginal and anal intercourse, with two young girls. An analogous situation is discussed in the Guidelines in connection with risk factor 2, which scores points based on the extent of an offender’s sexual contact with the victim. In discussing risk factor 2, the Guidelines note that if it is evident that the offender intended to rape his victim but was prevented from doing so by some factor other than his own change of mind, “the Board or a court may choose an upward departure if it concludes that the lack of points in this category results in an under-assessment of the offender’s actual risk to public safety”. Here, too, assessing the defendant no points for sexual contact with his victims under-assesses his actual risk to the public. The defendant’s communications demonstrate his intent to commit various crimes, including statutory rape, and he poses as much of a danger to the community as an offender who succeeds in engaging in sexual activity with an actual teenager or pre-teen he had targeted via the Internet.

A second aggravating factor which the People established by clear and convincing evidence at the SORA hearing is that the defendant transmitted images of himself masturbating to an individual he believed to be a 14–year–old girl. The risk assessment instrument does not take into account transmitting such images to an intended victim, and does not fully capture the level of risk posed by an offender, such as the defendant, who is caught attempting to victimize a child by an Internet sting operation. Although the defendant claims that his transmission of images of himself masturbating does not constitute an aggravating factor because these images were not sent to an actual “victim,” the fact that the recipient, unbeknownst to him, was an undercover officer does not lessen his danger to the community.

Further support for our conclusion that aggravating circumstances exist in this case is provided by the Fourth Department’s recent decision in a case, in which the court found that an upward departure had been properly granted in circumstances quite similar to those at bar. In affirming the defendant’s designation as a level two offender in that case, the Fourth Department held that “[t]here is clear and convincing evidence that defendant used the internet to engage in sexually explicit conversations with an undercover police officer posing as a 14–year–old girl, instructed her to masturbate, provided her with Web sites to educate her about sexual positions, communicated to her that he wanted to engage in sexual activity with her, and ‘exhibited a willingness to act on his compulsions’ by arranging to meet with her and then arriving at the arranged meeting with various items demonstrating his intent to engage in sexual activity”. The Court similarly concluded that the People sustained their burden of proving the existence of aggravating factors in this case, thus providing the County Court with a proper basis upon which to grant an upward departure.

The defendant’s further contention that the County Court improvidently exercised its discretion in granting an upward departure because it overlooked certain mitigating factors is without merit. The defendant’s claim is predicated in large part on the County Court’s alleged failure to take into account the report of two psychosexual experts who examined him prior to sentencing on his federal conviction, and found his likelihood of reoffending to be low. However, the reports upon which the defendant now relies were not placed in evidence or referenced at the SORA hearing, and there is no indication that the County Court was in possession of them. Accordingly, the defendant’s contentions regarding these reports are outside the record on appeal.

Additional factors which the defendant alleges that the County Court overlooked are that he had no prior criminal arrests or convictions, and is under strict supervision by the United States Probation Office with specialized safeguards imposed by the District Court. However, the risk assessment instrument scores an offender points based on the number and nature of his or her prior crimes, and points if the offender will be released without supervision. The risk assessment instrument therefore took into account the fact that the defendant had no prior criminal history, and would be released under supervision, by assigning him zero points for these risk factors. Although the Guidelines and risk assessment instrument do not fully take into consideration the specialized conditions of the defendant’s supervision which prohibit him from owning or obtaining access to a computer without the approval of the Probation Office, given the ease with which an offender can gain access to the Internet through modern technology, we do not find this to be a mitigating factor that outweighs the aggravating factors present in this case. Consequently, we will not disturb the County Court’s exercise of its discretion in departing from the defendant’s presumptive risk level, and designating him a level two sex offender.

Accordingly, the order is affirmed.
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