What's New
December 28, 2011: Need a Downward Departures in a Sex Offender Registration Proceeding? It Just Got a Little Easier. For many people who take a guilty plea or are convicted of a sex offense, a motion for a downward departure is the most important aspect of the risk level determination hearing under the Sex Offender Registration Act ("SORA"). And it's the most important aspect of a SORA hearing for all child pornography defendants, who otherwise are virtually assured of Level Two (moderate risk) status.
So what do you need to get a downward departure? You need to prove facts that are not adequately taken into account by the SORA Risk Assessment Instrument. And, according to a recent case in the Appellate Division, Second Department (which covers Brooklyn and Westchester, among others), you only need to prove those facts by a "preponderance of the evidence." That's good news: if the prosecution wants an upward departure, they need to prove the basis for it by "clear and convincing evidence." A preponderance is a lower standard -- it means you only have to show that it is more likely than not, for example, that you have been in a stable marriage for many years, you take care of your children without incident, or you have an exceptional record of job success or community contributions. By contrast, the People have to prove with convincing clarity any negative facts. Proof by clear and convincing evidence is easier to contradict than proof by a preponderance. As a result, the case, known as People v. Wyatt, makes it a little easier to stay off the internet and avoid lifetime registration for people convicted of sex offenses in Brooklyn, the Bronx and Westchester County (the decision is binding in the rest of New York State, too, but not on the other Appellate Divisions).
November 14, 2011: Sex Crimes Attorney Margulis-Ohnuma Comments on Judge's Alleged Ties in Penn State Abuse Case.
October 1, 2011: Second Circuit Rules that a Conviction under New York Law for Promoting Prostitution in the Third Degree Does not Trigger Automatic Deportation. Most sex crimes, including many crimes relating to prostitution, constitute "aggravated felonies" under the Immigration and Nationality Act. If an alien (including a lawful permanent resident or green card holder) is convicted of an aggravated felony, she or he is virtually guaranteed to be deported. But the Second Circuit recently ruled that the New York definition of Third Degree Promoting Prostitution is so broad that a conviction does not necessarily constitute an aggravated felony. In New York, prostitution includes engaging in any sexual conduct for a fee. But under federal immigration law, the court said, prostitution includes only engaging in "promiscuous sexual intercourse for hire." Thus, since under New York law promoting prostitution could include promoting acts that fall short of sexual intercourse, promoting prostitution is not necessarily an aggravated felony and does not, by itself, give rise to automatic removal from the United States. The case, Prus v. Holder, was decided by the Second Circuit Court of Appeal last week, and is available on the court's website.
September 9, 2011: Payments to Victims of Child Pornography? Normally, when a person is convicted of a crime (either after a trial or by pleading guilty), he or she must pay money to the victim of the crime to compensate for the victim's actual losses. This government-mandated payback is called restitution. In the federal child pornography statute, there is a specific provision that requires an offender to pay "the full amount of the victim's losses" to "an individual harmed as a result of the commission of a crime" of child pornography. But what does that mean when the person convicted merely possessed pictures of someone he never met? In other words, if you possess a picture of a child being sexually abused, should you have to pay for the child's expenses that resulted from the abuse?
The Second Circuit Court of Appeals recently said no. Joining other appellate courts but overturning a district court restitution judgment in U.S. v. Aumais, the Second Circuit said that the government must prove the defendant's conduct was the "proximate cause" of the harm to the victim. It is not enough to merely possess the pictures: although the victim, known as "Amy," was harmed by the distribution of pictures of her abuse, the government could not show that the conduct of the particular defendant (possessing the pictures) "was a substantial cause of the victim's harm."
But, the court warned, this holding did not "categorically" foreclose all orders of restitution against defendants who possess child pornography. It also pointed out that "Amy" had sought restitution in more than 250 cases around the country and had received about $170,000 by January 2010.
June 29, 2011: Are there really 100,000 to 300,000 children forced into prostitution in America each year? Or is it more like a few hundred? The Village Voice tackles that question, debunking the misuse of junk science that has been used -- by both anti-pornography moralists and gullible celebrities -- to stoke fears, raise money and exaggerate the scope of a horrible, but small-scale problem. In Real Men Get Their Facts Straight, Voice investigative reporters seek out and disclose the source of that remarkable statistic. They show that the oft-quoted 100,000 to 300,000 figure was originally an estimate of children that crusading authors of a 2001 study think are "at risk" for going into prostitution, based on various factors, not least that they live close to a border. There is not much to back up even the assertion that so many children are "at risk," let alone actually enter prostitution. Rather, the Voice looked at arrests of underage prostitutes from large cities around the country and found that there are about 800-900 per year. Fear mongering on this particular point arguably contributes to a climate of over-punishment of child pornography offenders. Underage prostitution is a problem and a terrible crime; but it is, thankfully, also very uncommon in this country. It should not provide a justification for the baseless assumption that child pornography offenders frequently commit hands-on sex crimes.
May 23, 2011: As allegations of (high) sex crimes and misdemeanors shatter the lives of IMF chief Dominique Strauss-Kahn, ex-California governor Arnold Schwarzenegger, and composer Joseph Brooks in the space of a couple of weeks, we thought it might be a good time to have a look at our recent track record advocating for people accused of sex crimes and for victims of sex crimes. Here are a few recent results -- with one big caveat: past performance is no guarantee of any particular result in any other case because every case is different. That said, this is a sampling of what this law office was able to achieve in the past few months in particular sex crimes cases, with identifying details omitted to protect client privacy:
May 4, 2011: Morphing and the First Amendment. Ever since Congress started getting serious about child pornography in the 1990s, the courts have made a sharp distinction between child pornography which was created by harming actual children and images that are not of actual children. The former is illegal and harshly punished, while the latter is protected by the First Amendment. But what about "morphing," i.e. using a computer to superimpose a picture of a real child on a picture of an adult body engaged in sexual activity?
The Second Circuit Court of Appeals recently considered that question -- and upheld a 78 month sentence on a man who cut and pasted pictures of faces of teenage girls onto pictures of nude adult women. The court reasoned that this conduct was forbidden under a special section of the federal child pornography statute and was not protected by the First Amendment because "the interests of actual minors are implicated when their faces are used in creating morphed images that make it appear that they are performing sexually explicit acts." This illegal morphing is different from computer-generated child pornography where "no actual person's image or reputation is implicated." If no real person is used in creating the images, they are still protected by the First Amendment.
One caveat though. The conduct in Hotaling was particularly creepy: the defendant stole pictures of actual girls from a computer he was working on and set them up with the pornographic pictures under titles with the girls' real first names. He then apparently dummied up -- but never published -- webpages with them. The question arises what if he had obtained pictures of strangers from public sources (e.g. toy catalogs or Teen People) and there was no evidence he was planning to publish them? While it seems hard to believe that would be prosecuted, at the same time it would clearly fall under the statute as interpreted by Hotaling. Congress and law enforcement are intent on defining child pornography as broadly as possible; under the law, cutting and pasting from magazines in the privacy of your home could land you years in federal prison.
January 22, 2011: Is the Adam Walsh Act Constitutional? The Bail Reform Act was amended in 2006 by the Adam Walsh Act to require that all child pornography defendants submit to electronic monitoring as a condition of bail. This means wearing an electronic ankle bracelet that sends out a signal when the defendant leaves his home. But, increasingly, judges are observing that this onerous provision can be an illegal "excessive bail" under the United States Constitution. In a recent case handled by this office, the government insisted that the defendant, who had surrendered himself on child pornography charges, wear a bracelet. But attorney Zachary Margulis-Ohnuma argued that the defendant was so stable and reliable that electronic monitoring was not only unnecessary, but also would violate the Constitution. A U.S. magistrate judge agreed, finding that the Adam Walsh Act would be unconstitutional as applied to these circumstances. As a result, the client was not required to wear a bracelet or submit to monitoring and remains free on bail.
November 8, 2010: New York's Second Department Appellate Division rules on the significance of automatically-created Internet files in child pornography cases. What is the significance of files on your computer automatically created when you browse a web page? In a recent child pornography case, the Second Department provided guidance on just that question. In People v. Kent, the Appellate Division ruled that just having the automatically-created files on your computer is not enough to show that you intentionally downloaded the files: "the mere existence of an image automatically stored in the cache, standing alone, is legally insufficient to prove either knowing procurement or knowing possession of child pornography."
The defendant in Kent argued that just visiting a child porn website does not constitute "procurement" of the site's contents; similarly, the defendant argued, there is no act of procurement committed when a Web page is automatically created without the defendant's knowledge or intentional act of downloading or saving it. In order to distinguish inadvertent acquisition or possession of the illegal material from knowing or intentional procurement or possession, the Court required additional evidence: more is required to prove procurement or possession than just showing that temporary Internet files were automatically stored.
Nonetheless, in Kent, the Court found that evidence of Internet browsing for child pornography sites and the storing of an additional 30,000 offensive images meticulously categorized and saved in sub-folders on a hard drive was sufficient additional evidence demonstrating procurement or possession. The Court also found that evidence of saving and deleting images in allocated space on the hard drive indicated the defendant's consciousness of guilt and knowledge of the difference between legal and illegal images. Thus while the Court upheld the basic principle that automatically-created files are not enough by themselves, in the case before it the Court found much more evidence of knowing possession and procurement, and therefore upheld the conviction.
October 29, 2010: Amendments to the New York Penal Law make life just a little bit harder for moderate- and high-risk sex offenders. Governor Paterson recently signed into law two amendments to the Penal Law that will affect Level Two and Level Three registered sex offenders. First, a Level Two or Level Three sex offender can now be prosecuted for Criminal Trespass in the Second Degree if he or she enters a school attended -- or formerly attended -- by the victim of the crime. The chief administrator of the school, e.g. superintendent, can authorize certain exceptions including permission to enter for the purpose of voting. (L. 2010, Ch. 315, effective November 1, 2010).
In addition, the Division of Criminal Justice Services is now required to make sex offender registry information regarding Level Two and Level Three offenders available to municipal housing authorities. (L. 2010, Ch. 278, effective September 28, 2010). This measure was enacted as a reaction to a report that 126 sex offenders were found to be living in New York City public housing.
September 24, 2010: Lawsuit against New York City Police to Proceed for Entrapment in Prostitution Arrest. Judge Shira A. Scheindlin of the Southern District of New York denied police motions for immunity in an interesting lawsuit involving a false arrest for prostitution. The facts are pretty remarkable: browsing in a video store, a young and attractive undercover officer allegedly offered to engage in oral sex with the plaintiff, a somewhat older gentleman. On their way out together, the undercover mentioned that he'd like to pay $50 to the older gentleman for oral sex. The older gentleman at that point got suspicious, said nothing, and tried to extricate himself from the situation. He was arrested for prostitution. Although he pleaded guilty to a lesser offense after 23 hours in custody, the conviction was later vacated with the consent of the district attorney's office. The Court said that if the facts were really what the plaintiff described, the case "reeks of entrapment" by the police -- no reasonable officer could think it would be proper to arrest the older gentleman under these circumstances. The case can now proceed to a trial against the officers if it does not settle.
July 30, 2010: Attorney Zachary Margulis-Ohnuma files pro bono motion to free man accused of murdering his family and sexually abusing his sister. Antonio Yarbough was 17 years old when he came home to find three bodies in his apartment -- his 12-year-old sister and a 12-year-old friend had been sexually abused and brutally stabbed and strangled along with Tony's mother. He immediately reported the crimes but police nonetheless turned their suspicions on him, extracting his signature on a false confession after nearly 15 hours in custody. Now, after more than 18 years in prison, Tony has filed a motion to vacate the conviction based on physical evidence from the crime scene showing that he could not have committed the murders. Please click the link to review the brief filed on Tony's behalf by attorney Zachary Margulis-Ohnuma.
June 8, 2010: Second Circuit urges federal judges to think long and hard before applying the child pornography sentencing guidelines. In an important opinion handed down last month, the federal appeals court for New York harshly criticized the child pornography sentencing guidelines, vacating a 233-month sentence for child pornography distribution as "substantively unreasonable." The decision is United States v. Dorvee, 604 F.3d 84. In it, Judge Barrington Parker called the child pornography sentencing rule "an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate manifestly unjust results." Judge Parker pointed out that if the defendant had actually engaged in sexual contact with a child, his sentence would have been much lower. Similarly, a repeat criminal who engages in aggravated assault with a firearm that results in bodily injury is subjected to the same Sentencing Guideline range as a person who has two non-violent videos of seventeen-year-olds having consensual sex. These results are absurd of course, and come about because the child pornography Guidelines were increased due to a series of Congressional mandates for harsher and harsher penalties over the last several years.
If you face sentencing for a child pornography crime in federal court in New York, it is imperative that your lawyer bring the Dorvee case to the attention of the sentencing judge. While district judges are increasingly aware of their discretion to vary from the Guidelines, the ranges for child pornography are so impossibly high that a thorough analysis of their origins and perverse effects -- like the analysis done in Dorvee -- is necessary in every case.
May 12, 2010: You don't have to know about Sex Offender Registration to plead guilty to a sex crime. In a decision handed down yesterday, the New York Court of Appeals ruled that guilty pleas to sex crimes are valid even though the defendants were not informed by the judge that they had to register under SORA as a result of their conviction. The defendants also claimed that their attorneys never advised them that they had to register. The Court was not interested: it repeated the usual nonsense that SORA is not "punishment" and therefore not a direct consequence of the guilty plea. This actually would seem to fly in the face of a recent Supreme Court decision that held that attorneys must advise their clients about possible deportation before the client can knowingly accept a guilty plea. In practice, we know that for many sex crimes a minimum of 20 years' registration is the main punishment -- more onerous in many cases than a brief jail term or probation. The Court of Appeals case is People v. Gravino et al.
February 10, 2010: Appeals court reduces SORA risk level for offender who declined treatment. In People v. Kearns, decided on December 30, 2009, the New York Supreme Court Appellate Division found that a lower court properly scored a sex offender points for refusing treatment in prison. The refusal was based on advice from his lawyer. The defendant was found by psychologists not to be a threat. Therefore, participation in jailhouse treatment presented him with a "Hobson's choice" -- his decision not to participate was a reasonable exercise of his Fifth Amendment privilege against self-incrimination. Accordingly, although the presumptive risk level was Level Three, the appeals court found that the lower court improvidently exercised its discretion in denying a downward departure. The appeals court held that the correct risk level in these circumstances was Level Two.
January 12, 2010: Second Circuit strikes down release condition requiring sex offender to reveal status to girlfriends. In United States v. Reeves, a child pornography defendant was sentenced to more than three years' imprisonment to be followed by a term of supervised release with certain conditions. One of the conditions was that he had to let the probation department know when he entered into a "serious romantic relationship." Worse, he was required to tell the person he was in a relationship with that he had a history of possession of child pornography. The appeals court struck down the provision, finding the definition of "serious romantic relationship" was unduly vague and that the requirement was not reasonably related to the objectives of federal sentencing.
So what do you need to get a downward departure? You need to prove facts that are not adequately taken into account by the SORA Risk Assessment Instrument. And, according to a recent case in the Appellate Division, Second Department (which covers Brooklyn and Westchester, among others), you only need to prove those facts by a "preponderance of the evidence." That's good news: if the prosecution wants an upward departure, they need to prove the basis for it by "clear and convincing evidence." A preponderance is a lower standard -- it means you only have to show that it is more likely than not, for example, that you have been in a stable marriage for many years, you take care of your children without incident, or you have an exceptional record of job success or community contributions. By contrast, the People have to prove with convincing clarity any negative facts. Proof by clear and convincing evidence is easier to contradict than proof by a preponderance. As a result, the case, known as People v. Wyatt, makes it a little easier to stay off the internet and avoid lifetime registration for people convicted of sex offenses in Brooklyn, the Bronx and Westchester County (the decision is binding in the rest of New York State, too, but not on the other Appellate Divisions).
November 14, 2011: Sex Crimes Attorney Margulis-Ohnuma Comments on Judge's Alleged Ties in Penn State Abuse Case.
October 1, 2011: Second Circuit Rules that a Conviction under New York Law for Promoting Prostitution in the Third Degree Does not Trigger Automatic Deportation. Most sex crimes, including many crimes relating to prostitution, constitute "aggravated felonies" under the Immigration and Nationality Act. If an alien (including a lawful permanent resident or green card holder) is convicted of an aggravated felony, she or he is virtually guaranteed to be deported. But the Second Circuit recently ruled that the New York definition of Third Degree Promoting Prostitution is so broad that a conviction does not necessarily constitute an aggravated felony. In New York, prostitution includes engaging in any sexual conduct for a fee. But under federal immigration law, the court said, prostitution includes only engaging in "promiscuous sexual intercourse for hire." Thus, since under New York law promoting prostitution could include promoting acts that fall short of sexual intercourse, promoting prostitution is not necessarily an aggravated felony and does not, by itself, give rise to automatic removal from the United States. The case, Prus v. Holder, was decided by the Second Circuit Court of Appeal last week, and is available on the court's website.
September 9, 2011: Payments to Victims of Child Pornography? Normally, when a person is convicted of a crime (either after a trial or by pleading guilty), he or she must pay money to the victim of the crime to compensate for the victim's actual losses. This government-mandated payback is called restitution. In the federal child pornography statute, there is a specific provision that requires an offender to pay "the full amount of the victim's losses" to "an individual harmed as a result of the commission of a crime" of child pornography. But what does that mean when the person convicted merely possessed pictures of someone he never met? In other words, if you possess a picture of a child being sexually abused, should you have to pay for the child's expenses that resulted from the abuse?
The Second Circuit Court of Appeals recently said no. Joining other appellate courts but overturning a district court restitution judgment in U.S. v. Aumais, the Second Circuit said that the government must prove the defendant's conduct was the "proximate cause" of the harm to the victim. It is not enough to merely possess the pictures: although the victim, known as "Amy," was harmed by the distribution of pictures of her abuse, the government could not show that the conduct of the particular defendant (possessing the pictures) "was a substantial cause of the victim's harm."
But, the court warned, this holding did not "categorically" foreclose all orders of restitution against defendants who possess child pornography. It also pointed out that "Amy" had sought restitution in more than 250 cases around the country and had received about $170,000 by January 2010.
June 29, 2011: Are there really 100,000 to 300,000 children forced into prostitution in America each year? Or is it more like a few hundred? The Village Voice tackles that question, debunking the misuse of junk science that has been used -- by both anti-pornography moralists and gullible celebrities -- to stoke fears, raise money and exaggerate the scope of a horrible, but small-scale problem. In Real Men Get Their Facts Straight, Voice investigative reporters seek out and disclose the source of that remarkable statistic. They show that the oft-quoted 100,000 to 300,000 figure was originally an estimate of children that crusading authors of a 2001 study think are "at risk" for going into prostitution, based on various factors, not least that they live close to a border. There is not much to back up even the assertion that so many children are "at risk," let alone actually enter prostitution. Rather, the Voice looked at arrests of underage prostitutes from large cities around the country and found that there are about 800-900 per year. Fear mongering on this particular point arguably contributes to a climate of over-punishment of child pornography offenders. Underage prostitution is a problem and a terrible crime; but it is, thankfully, also very uncommon in this country. It should not provide a justification for the baseless assumption that child pornography offenders frequently commit hands-on sex crimes.
May 23, 2011: As allegations of (high) sex crimes and misdemeanors shatter the lives of IMF chief Dominique Strauss-Kahn, ex-California governor Arnold Schwarzenegger, and composer Joseph Brooks in the space of a couple of weeks, we thought it might be a good time to have a look at our recent track record advocating for people accused of sex crimes and for victims of sex crimes. Here are a few recent results -- with one big caveat: past performance is no guarantee of any particular result in any other case because every case is different. That said, this is a sampling of what this law office was able to achieve in the past few months in particular sex crimes cases, with identifying details omitted to protect client privacy:
- Federal prosecution for sex trafficking immigrant women - government agrees to drop all charges in six months.
- Possession of internet child pornography - government seeks sentence of at least 78 months imprisonment under the federal Sentencing Guidelines, but court imposes probation and six months' house arrest based on our motion for a non-Guidelines sentence.
- Sex Offender Registration Risk Level Re-Determination Proceeding - New York prosecutor seeks Level Two (moderate risk) based on a risk assessment score of 100 points, but court reduces score to 85 and, although that is still in the Level Two range, downwardly departs to Level One based on our motion.
- Former Intern Seeks Damages for Rape - executive at a major corporation pays a six-figure settlement to avoid being sued for raping our client.
May 4, 2011: Morphing and the First Amendment. Ever since Congress started getting serious about child pornography in the 1990s, the courts have made a sharp distinction between child pornography which was created by harming actual children and images that are not of actual children. The former is illegal and harshly punished, while the latter is protected by the First Amendment. But what about "morphing," i.e. using a computer to superimpose a picture of a real child on a picture of an adult body engaged in sexual activity?
The Second Circuit Court of Appeals recently considered that question -- and upheld a 78 month sentence on a man who cut and pasted pictures of faces of teenage girls onto pictures of nude adult women. The court reasoned that this conduct was forbidden under a special section of the federal child pornography statute and was not protected by the First Amendment because "the interests of actual minors are implicated when their faces are used in creating morphed images that make it appear that they are performing sexually explicit acts." This illegal morphing is different from computer-generated child pornography where "no actual person's image or reputation is implicated." If no real person is used in creating the images, they are still protected by the First Amendment.
One caveat though. The conduct in Hotaling was particularly creepy: the defendant stole pictures of actual girls from a computer he was working on and set them up with the pornographic pictures under titles with the girls' real first names. He then apparently dummied up -- but never published -- webpages with them. The question arises what if he had obtained pictures of strangers from public sources (e.g. toy catalogs or Teen People) and there was no evidence he was planning to publish them? While it seems hard to believe that would be prosecuted, at the same time it would clearly fall under the statute as interpreted by Hotaling. Congress and law enforcement are intent on defining child pornography as broadly as possible; under the law, cutting and pasting from magazines in the privacy of your home could land you years in federal prison.
January 22, 2011: Is the Adam Walsh Act Constitutional? The Bail Reform Act was amended in 2006 by the Adam Walsh Act to require that all child pornography defendants submit to electronic monitoring as a condition of bail. This means wearing an electronic ankle bracelet that sends out a signal when the defendant leaves his home. But, increasingly, judges are observing that this onerous provision can be an illegal "excessive bail" under the United States Constitution. In a recent case handled by this office, the government insisted that the defendant, who had surrendered himself on child pornography charges, wear a bracelet. But attorney Zachary Margulis-Ohnuma argued that the defendant was so stable and reliable that electronic monitoring was not only unnecessary, but also would violate the Constitution. A U.S. magistrate judge agreed, finding that the Adam Walsh Act would be unconstitutional as applied to these circumstances. As a result, the client was not required to wear a bracelet or submit to monitoring and remains free on bail.
November 8, 2010: New York's Second Department Appellate Division rules on the significance of automatically-created Internet files in child pornography cases. What is the significance of files on your computer automatically created when you browse a web page? In a recent child pornography case, the Second Department provided guidance on just that question. In People v. Kent, the Appellate Division ruled that just having the automatically-created files on your computer is not enough to show that you intentionally downloaded the files: "the mere existence of an image automatically stored in the cache, standing alone, is legally insufficient to prove either knowing procurement or knowing possession of child pornography."
The defendant in Kent argued that just visiting a child porn website does not constitute "procurement" of the site's contents; similarly, the defendant argued, there is no act of procurement committed when a Web page is automatically created without the defendant's knowledge or intentional act of downloading or saving it. In order to distinguish inadvertent acquisition or possession of the illegal material from knowing or intentional procurement or possession, the Court required additional evidence: more is required to prove procurement or possession than just showing that temporary Internet files were automatically stored.
Nonetheless, in Kent, the Court found that evidence of Internet browsing for child pornography sites and the storing of an additional 30,000 offensive images meticulously categorized and saved in sub-folders on a hard drive was sufficient additional evidence demonstrating procurement or possession. The Court also found that evidence of saving and deleting images in allocated space on the hard drive indicated the defendant's consciousness of guilt and knowledge of the difference between legal and illegal images. Thus while the Court upheld the basic principle that automatically-created files are not enough by themselves, in the case before it the Court found much more evidence of knowing possession and procurement, and therefore upheld the conviction.
October 29, 2010: Amendments to the New York Penal Law make life just a little bit harder for moderate- and high-risk sex offenders. Governor Paterson recently signed into law two amendments to the Penal Law that will affect Level Two and Level Three registered sex offenders. First, a Level Two or Level Three sex offender can now be prosecuted for Criminal Trespass in the Second Degree if he or she enters a school attended -- or formerly attended -- by the victim of the crime. The chief administrator of the school, e.g. superintendent, can authorize certain exceptions including permission to enter for the purpose of voting. (L. 2010, Ch. 315, effective November 1, 2010).
In addition, the Division of Criminal Justice Services is now required to make sex offender registry information regarding Level Two and Level Three offenders available to municipal housing authorities. (L. 2010, Ch. 278, effective September 28, 2010). This measure was enacted as a reaction to a report that 126 sex offenders were found to be living in New York City public housing.
September 24, 2010: Lawsuit against New York City Police to Proceed for Entrapment in Prostitution Arrest. Judge Shira A. Scheindlin of the Southern District of New York denied police motions for immunity in an interesting lawsuit involving a false arrest for prostitution. The facts are pretty remarkable: browsing in a video store, a young and attractive undercover officer allegedly offered to engage in oral sex with the plaintiff, a somewhat older gentleman. On their way out together, the undercover mentioned that he'd like to pay $50 to the older gentleman for oral sex. The older gentleman at that point got suspicious, said nothing, and tried to extricate himself from the situation. He was arrested for prostitution. Although he pleaded guilty to a lesser offense after 23 hours in custody, the conviction was later vacated with the consent of the district attorney's office. The Court said that if the facts were really what the plaintiff described, the case "reeks of entrapment" by the police -- no reasonable officer could think it would be proper to arrest the older gentleman under these circumstances. The case can now proceed to a trial against the officers if it does not settle.
July 30, 2010: Attorney Zachary Margulis-Ohnuma files pro bono motion to free man accused of murdering his family and sexually abusing his sister. Antonio Yarbough was 17 years old when he came home to find three bodies in his apartment -- his 12-year-old sister and a 12-year-old friend had been sexually abused and brutally stabbed and strangled along with Tony's mother. He immediately reported the crimes but police nonetheless turned their suspicions on him, extracting his signature on a false confession after nearly 15 hours in custody. Now, after more than 18 years in prison, Tony has filed a motion to vacate the conviction based on physical evidence from the crime scene showing that he could not have committed the murders. Please click the link to review the brief filed on Tony's behalf by attorney Zachary Margulis-Ohnuma.
June 8, 2010: Second Circuit urges federal judges to think long and hard before applying the child pornography sentencing guidelines. In an important opinion handed down last month, the federal appeals court for New York harshly criticized the child pornography sentencing guidelines, vacating a 233-month sentence for child pornography distribution as "substantively unreasonable." The decision is United States v. Dorvee, 604 F.3d 84. In it, Judge Barrington Parker called the child pornography sentencing rule "an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate manifestly unjust results." Judge Parker pointed out that if the defendant had actually engaged in sexual contact with a child, his sentence would have been much lower. Similarly, a repeat criminal who engages in aggravated assault with a firearm that results in bodily injury is subjected to the same Sentencing Guideline range as a person who has two non-violent videos of seventeen-year-olds having consensual sex. These results are absurd of course, and come about because the child pornography Guidelines were increased due to a series of Congressional mandates for harsher and harsher penalties over the last several years.
If you face sentencing for a child pornography crime in federal court in New York, it is imperative that your lawyer bring the Dorvee case to the attention of the sentencing judge. While district judges are increasingly aware of their discretion to vary from the Guidelines, the ranges for child pornography are so impossibly high that a thorough analysis of their origins and perverse effects -- like the analysis done in Dorvee -- is necessary in every case.
May 12, 2010: You don't have to know about Sex Offender Registration to plead guilty to a sex crime. In a decision handed down yesterday, the New York Court of Appeals ruled that guilty pleas to sex crimes are valid even though the defendants were not informed by the judge that they had to register under SORA as a result of their conviction. The defendants also claimed that their attorneys never advised them that they had to register. The Court was not interested: it repeated the usual nonsense that SORA is not "punishment" and therefore not a direct consequence of the guilty plea. This actually would seem to fly in the face of a recent Supreme Court decision that held that attorneys must advise their clients about possible deportation before the client can knowingly accept a guilty plea. In practice, we know that for many sex crimes a minimum of 20 years' registration is the main punishment -- more onerous in many cases than a brief jail term or probation. The Court of Appeals case is People v. Gravino et al.
February 10, 2010: Appeals court reduces SORA risk level for offender who declined treatment. In People v. Kearns, decided on December 30, 2009, the New York Supreme Court Appellate Division found that a lower court properly scored a sex offender points for refusing treatment in prison. The refusal was based on advice from his lawyer. The defendant was found by psychologists not to be a threat. Therefore, participation in jailhouse treatment presented him with a "Hobson's choice" -- his decision not to participate was a reasonable exercise of his Fifth Amendment privilege against self-incrimination. Accordingly, although the presumptive risk level was Level Three, the appeals court found that the lower court improvidently exercised its discretion in denying a downward departure. The appeals court held that the correct risk level in these circumstances was Level Two.
January 12, 2010: Second Circuit strikes down release condition requiring sex offender to reveal status to girlfriends. In United States v. Reeves, a child pornography defendant was sentenced to more than three years' imprisonment to be followed by a term of supervised release with certain conditions. One of the conditions was that he had to let the probation department know when he entered into a "serious romantic relationship." Worse, he was required to tell the person he was in a relationship with that he had a history of possession of child pornography. The appeals court struck down the provision, finding the definition of "serious romantic relationship" was unduly vague and that the requirement was not reasonably related to the objectives of federal sentencing.