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Defedant is Charged with Rape in the Third Degree Under Penal Law 130.25

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.

New York Sex Crime Attorneys like New York Rape Attorneys and Stephen Bilkis & Associates work together to fix the ills of our community by continuously providing unparalleled legal service. Should you find anyone in the same predicament as the characters in the case above, please feel free to refer us. Questions regarding the issues and the law discussed here may be asked through our toll free number. You may also visit our office nearest you.

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