People v. J.G.
| Decision Date | 30 December 1996 |
| Citation | 655 N.Y.S.2d 783,171 Misc.2d 440 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. J.G., Defendant. 1 Supreme Court, Richmond County |
| Court | New York Supreme Court |
Anthony I. Giacobbe, Staten Island (Timothy E. Graulich, of counsel), for defendant.
William L. Murphy, District Attorney of Richmond County (Quentin Smith, of counsel), for plaintiff.
A defendant who pleads guilty to Rape in the Third Degree (Penal Law § 130.25) by way of an Alford-Serrano 2 plea, notwithstanding his claims of innocence, is convicted of a felony. Accordingly, he is subject to the collateral consequences of that conviction to include being classified under the Sex Offender Registration Act ("SORA"--Correction Law § 168 et seq. ) and being subject to take an HIV test upon the request of the victim.
The defendant was indicted in 1994 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 (PL § 130.25) 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.
The defendant argues 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.
After the plea, the assistant district attorney moved pursuant to Criminal Procedure Law section 390.15 that the defendant submit to a human immunodeficiency virus ("HIV") test. Attached to the People's motion was an application for HIV testing signed by the A 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.
alleged victim. 3 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
Under the Sex Offender Registration Act, the New York version of "Megan's Law," 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" ("Worksheet") 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. Here, the defendant has not accepted responsibility and still maintains his innocence by way of his Alford-Serrano plea. The defendant challenges this court's assessing of points for not accepting responsibility for the crime.
Under the SORA, individuals convicted of certain designated offenses are required to register with the Division of Criminal Justice Services ("DCJS") within ten days of either their discharge from prison, their release from parole, or their sentence of probation (Correction L. § 168-f). The court must determine the risk level of the defendant to determine the level of notification to the public that will be made. There are three levels of risk: (1) low; (2) moderate; and (3) high. Although notification to local law enforcement agencies is mandated for all three levels of sex offenders, public or community notification is only authorized for levels 2 and 3 sex offenders. A Level 2 designation will allow law enforcement agencies to release information to the public about the sex offense committed, a photograph of the offender and his zip code (Correction L. § 168-l[6][b]). If the offender is a Level 3 risk the law enforcement agency can disseminate the exact addresses of the offender (Correction L. § 168-l[6][c]). 4
The Sex Offender Registration Act Risk Assessment Instrument ("Worksheet") is used by the Division of Parole, the Department of Probation, and the courts to determine the presumptive risk level of the sex offender. The worksheet incorporates the factors contained in Correction Law section 168-l and assigns a point value to the various factors. The point system is further divided up into four categories: (1) Current Offense(s); 5 (2) Criminal Pursuant to subdivision three of Correction Law section 168-d, this 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. 9
History; 6 (3) Post-Offense Behavior; 7 and (4) Release Environment. 8 The levels of sex offenders are determined as follows: Level 1 = 0 to 70 points; Level 2 = 75 to 105 points; and Level 3 = 110 to 300 points. Additionally, there are four other factors which override the numerical total and will automatically classify the offender a Level 3. They are: offender has a prior felony conviction for a sex crime; offender caused serious physical injury or death; offender has made a recent threat that he will commit a sexual or violent crime; or there has been a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases ability to control impulsive sexual behavior. (See, People v. Cook, NYLJ, November 22, 1996, at 31, c. 2 [Queens Co.Sup.Ct.]; People v. Lombardo, 167 Misc.2d 942, 640 N.Y.S.2d 995 [Nassau Co.Ct.1996].)
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. For example, a criminal conviction is conclusive proof of the underlying facts in a subsequent civil action even if that conviction results from an Alford-Serrano plea. Justice Niehoff writing for the Appellate Division Second Department held that "[t]he 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" (Merchants Mutual Insurance v. Arzillo, 98 A.D.2d 495, 506, 472 N.Y.S.2d 97 [1984]).
Justice Niehoff went on to state:
While it is true that in a Serrano-type guilty plea there is no admission, as such, of the facts justifying the conviction, it is manifest that a defendant entering such a guilty plea, like any defendant entering a conventional guilty plea chooses, for reasons which he deems good and sufficient, not to avail himself of the opportunity to This court is of like mind. 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.
contest the facts underlying the charge against him. That of course is his prerogative. However, he must accept the consequences of his action.
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 (U.S. Const. amend. 4; N.Y. Const. art. 1 § 12); (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 took effect on August 1, 1995 and was to apply to all persons convicted and adjudicated after that date (L.1995, c. 76, § 5). Under the law, 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 "the court must, upon a request of the victim, order that the defendant submit to human immunodeficiency (HIV) related testing" (CPL § 390.15[1][a] [emphasis added]). The court ordered test must then be performed...
To continue reading
Request your trial
-
State v. Bemer
...the victims will have or should have already been tested themselves for sexually transmitted diseases"); cf. People v. J. G. , 171 Misc. 2d 440, 450, 655 N.Y.S.2d 783 (1996) (court tended to agree with expert who testified that, when more than two and one-half years have passed since assaul......
-
People v. Flynn
...in the context of this collateral proceeding as a failure to accept responsibility for the purposes of risk assessment. People v. J.G., 171 Misc.2d 440, 655 N.Y.S.2d 783 [Sup Ct Richmond Co 1996] (“Even though the defendant did not admit the offense charged, he did plead guilty to it. There......
-
Kasckarow v. Bd. of Examiners of Sex Offenders of New York, 10237/11.
...350, 400 N.E.2d 292 [attorney disbarred based on Alford plea] ), and sex offender registration under SORA ( see People v. J.G., 171 Misc.2d 440, 445–446, 655 N.Y.S.2d 783 [Sup Ct. Richmond County 1996] ). In sum, a nolo contendere plea is generally deemed a conviction. There is also nothing......
-
Adams v. State, S98A0341.
...S.E.2d 815 (1982). See also State in Interest of J. G., 151 N.J. 565, 701 A.2d 1260, 1265 (1997). 3. See, e.g., People v. J. G., 171 Misc.2d 440, 655 N.Y.S.2d 783 (Sup. 1996); People v. Adams, 149 Ill.2d 331, 173 Ill.Dec. 600, 597 N.E.2d 574 (1992); Johnetta J. v. Municipal Court, 218 Cal. ......