Articles Posted in SEX CRIMES

One set of tools that defendants can use throughout the course of their litigation is psychological testing and accompanying expert opinion. For some defendants, if a qualified expert can testify that the defendant is not at high risk of re-offending, the court will sentence the defendant more leniently. In one recent case before the Appellate Division, Third Department, the court decided that the defendant’s test results should have resulted in a downward departure of his sex offender registration (SORA) risk level. The case marks a win for the defendant, who asked the court to keep his psychological test results in mind when making a decision.

Originally, the defendant pled guilty to four counts of felonious sexual assault as well as misdemeanor charges related to the provision of alcohol to a minor. The trial court sentenced him to time in prison, and when he was released, the Board of Examiners of Sex Offenders classified him as a risk level two sex offender under the Sex Offender Registration Act. The defendant appealed, arguing he should have been classified as a level one offender, which would indicate to the public that he was not at high risk for reoffending.

The court agreed with the defendant that level one would have been more appropriate. The court’s reasoning rested on results of the defendant’s psychometric testing and of the testers’ expert opinions. Two professional evaluators tested the defendant, one a clinical social worker and the other a psychologist. According to both test results, the defendant was at a low risk of reoffending. The defendant had strong familial support, he was undergoing a difficult time when he originally offended, and he did not have a tendency to inappropriately act on feelings of anger.

A New York court recently issued an interesting opinion dealing with the sex offender registry, and its opinion highlights a technical question that can have significant impacts on defendants convicted of sex crimes. The question before the court had to do with a specific defendant’s status on the sex offender registry. She argued that she should be listed on the registry as a nonviolent offender, while the State argued she should be listed on the registry as a violent offender. Ultimately, the court’s decision came out in favor of the defendant, and it decided to make her status “nonviolent” on the registry in New York.

The Defendant’s Conviction

In the case before the Appellate Division, Fourth Department, the defendant appealed an order from the lower court that designated her as a “sexually violent offender.” The defendant lived in North Carolina, and while living there, she was convicted of sexual activity under the theory of aiding and abetting. She registered as a sex offender and later moved to the state of New York. She was then required, under the law, to register as a sex offender in New York.

The Board of Examiners of Sex Offenders conducted a risk assessment of the defendant to determine her level of risk for purposes of the sex offender registry. The Board did not think that the defendant needed to be labeled “sexually violent,” but the State argued that she should be designated “violent” because of a specific law, which says when a person is convicted in another state, that person should then be labeled as a sexually violent offender in the new state where they reside.

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In the state of New York, when a defendant is charged with rape, the defense attorney is prohibited from questioning the rape victim about his or her sexual history. This rule is called the rape shield law, and it prohibits juries from hearing evidence about a victim’s previous sexual acts unless the evidence shows that the defendant and the victim previously engaged in sexual activity. While there are a few other limited exceptions to the rule, the rule generally aims to keep jury members from making assumptions about rape victims that are irrelevant to the specific charges at hand.

In a June 2024 case before a New York appellate court, the defendant argued on appeal that he should have been able to question the victim (sometimes called the “complainant”) about her sexual history during cross examination. According to the defendant, it was relevant to open up this line of questioning in order to show that the complainant had engaged in sexual activity with other individuals. These other individuals, said the defendant, might have given her the physical injuries she claimed were due to the defendant’s rape.

The trial court prohibited the defendant from asking about the woman’s previous sexual history. On appeal, the higher court affirmed the trial court’s decision, concluding that the defendant’s theory that the woman’s injuries came from other sexual interactions was “purely based upon rumor and speculation.” This, said the court, was not a good enough reason to go against the rape shield law protecting the complainant from having to offer testimony about her sexual history.

Film producer Harvey Weinstein’s rape conviction has been highly publicized and scrutinized for several years, and on April 25, 2024, the New York Court of Appeals issued an opinion that has elicited even more outrage surrounding the proceedings. In its opinion, the court decided that Weinstein is entitled to a new trial, which means a new judge and new prosecutor will likely appear for the proceedings. As part of the trial, the court will also reconsider Weinstein’s 23-year sentence.

Basis for the Original Trial

Weinstein’s original proceedings were based on three sex crimes against three individuals. During the trial, the prosecution argued that the defendant abused his power and fame to take advantage of female actors, coercing them into unwanted sexual acts. The theory of the case was that Weinstein offered these women assistance with their careers in exchange for his demands. The case proceeded to trial in 2020.

A jury convicted Weinstein of first-degree criminal sexual act and third-degree rape. The trial court sentenced him to an aggregate term of 23 years in prison, plus five years of post-release supervision. He has been incarcerated for the last several years.

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In a recent case coming out of an appellate court in New York, the defendant’s request for a new analysis under the Sex Offender Registration Act was denied. The defendant took issue with the trial court’s decision regarding his “risk level” after he was originally found guilty of possessing child pornography. Asking for a lower risk level on the sex offender registry, the defendant argued there was not enough evidence to support the high risk level the lower court had assigned him. Reviewing the case and ultimately disagreeing with the defendant’s argument, the higher court denied his appeal.

Facts of the Case

According to the opinion, the defendant was charged with possession of child pornography several years ago, in 2014. He pled guilty and was sentenced accordingly. When an individual in New York is classified as a “sex offender” by the court, that person must register on the sex offender registry to notify the public of his or her risk level. Once the individual is sentenced, or if incarcerated before the individual’s release, a court must hold an evidentiary hearing to decide what the person’s assigned risk level will be. One is the lowest risk level, and three is the highest.

In this case, the court designated the defendant as a level two sex offender, meaning it thought he posed a moderate risk to the community. The defendant appealed, arguing he should have been classified as a level one instead of as a level two.

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Recently, a New York defendant successfully argued to reverse the lower court’s classification of his sex offender registration risk level in a sex offender case. The defendant was charged with and convicted of engaging in forcible sexual intercourse in 2012, and when he was eventually released from prison, the State suggested a risk level to put on the defendant’s sex offender registry. After the lower court accepted the State’s recommendation, the defendant appealed, and the higher court reversed the original decision.  Generally, before a sex offender is released from incarceration an evidentiary hearing is held to determine the appropriate risk level and therefore the terms of the offender’s registration.

Facts of the Case

According to the opinion, the defendant engaged in forced sexual intercourse with a child when he was 19 years old. He spent five years in prison, and he registered for the sex offender registry when he was released. As part of that registry, the defendant knew the court would assign him a “risk level,” which would indicate to anyone looking him up on the registry how dangerous the court thought he might be.

The State suggested a risk level of 3 (the highest possible level) for the defendant, but the defendant thought his level should be lower than the State’s suggestion. During a hearing on the defendant’s risk level, the court granted the State’s request and assigned the defendant the number 3 on the sex offender registry. The defendant appealed.

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In an April 2023 case before an appellate court in New York, the defendant, a convicted sex offender,  appealed a lower court’s decision to designate him as a level three sex offender under the sex offender registration act (SORA). After the defendant was charged with and convicted of rape, the State asked for the defendant to be registered as a sex offender in the state of New York. When the defendant thought that the lower court unfairly assessed his risk level to the community, he appealed, and the higher court ultimately agreed with his argument, granting his appeal.

Facts of the Case

According to the opinion, the defendant was originally charged after he raped a woman and threatened violence against her. Apparently, he told the woman that if she did not have sex with him, he would use a machete against her. He claimed that he kept a machete under his bed, although there was no evidence on the record that the defendant actually owned a machete or had one available to him.

The defendant was convicted of rape in the third degree. The State then asked the court to register him according to the Sex Offender Registration Act. This process means that the court must determine the defendant’s risk level to the community, which involves assigning him a numerical value that indicates how dangerous he might be in the future.

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In a recent rape case before an appeals court in New York, the defendant asked the court to find that he had received ineffective assistance of counsel during his trial for rape in the second degree. Originally, the defendant was charged by indictment after evidence supported a showing that he had engaged in sexual relations with a 14-year-old girl several times. During the trial, the defendant thought his attorney should have made more objections to the evidence that the State asked the jury to consider. Ultimately, the defendant lost at trial, and he was convicted and sentenced accordingly. On appeal, the court considered the defendant’s argument and disagreed that his counsel was inadequate. The defendant’s conviction was affirmed.

Facts of the Case

According to the opinion, the defendant was a man in his 40s who knew the victim and her family. As the defendant and the victim spent more time together, the defendant disclosed to the victim that he was having trouble in his marriage. Eventually, the defendant and the victim began engaging in sexual relations, and the State police received a report that the defendant was sexually abusing the minor.

When the defendant was charged, he was taken in for an interview with the police. At that point, he was given Miranda warnings, and he cooperated fully with the investigators. Later in the day, the defendant provided a written statement admitting that he had been having sex with the victim in the case.

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