What's New
April 16, 2008: The New York State Supreme Court, 2d Department, rejects a secret lawsuit by an allegedly mob-connected bus company magnate who sought to sue Margulis-Ohnuma client Jerry Capeci. Click these links for the decision and Capeci's columns about the claims, which were also covered by the New York Times and Channel 4 News. Staten Island bus company magnate had sought permission to file an unprecedented secret lawsuit against renowned author Capeci. The Appellate Division decision has the effect of affirming and unsealing a Staten Island decision which sided with Capeci previously.
January 18, 2008: Kings County District Attorney's Office provides a guide to sex offender registration for parents. Click here to see the full report.
December 27, 2007: Attorney Margulis-Ohnuma appointed to the Criminal Justice Act Panel for the Southern District of New York. We are pleased to announce that Principal Attorney Zachary Margulis-Ohnuma has been appointed to the federal CJA panel for the United States District Court for the Southern District of New York, the nation's leading trial court. In his capacity as a CJA attorney, Mr. Margulis-Ohnuma will be offering free, court-appointed legal services to indigent defendants charged in multi-defendant cases in the Southern District of New York. "I am delighted to have the opportunity to help poor people caught up in the federal justice system by serving on the CJA panel in Manhattan," said Mr. Margulis-Ohnuma. "This panel carries on the great tradition of Gideon v. Wainwright at an extraordinarily high level of proficiency. I am honored and humbled to be appointed."
November 15, 2007: More fallout from the "Moll Tapes". The Kings County District Attorney's office not only dropped the case against R. Lindley DeVecchio, but requested a special prosecutor to look into perjury charges against Linda Schiro. A politically ambitious former judge, Leslie Crocker Snyder, will head up the investigation. Judge Snyder founded the Manhattan District Attorney's office special sex crimes unit; she also helped write the Rape Shield law which excludes evidence of an alleged victims' sexual past in sex crimes trials. Snyder was dubbed "dragon lady" in an in-depth Village Voice profile by Margulis-Ohnuma client Tom Robbins when she ran for Manhattan district attorney two years ago. She will no doubt take a hard look at Schiro -- and depend largely on Robbins' reporting with co-author Jerry Capeci to make her case. Let's hope she respects the reporters' rights under the Shield Law in her quest for justice.
Meanwhile, Robbins gave a thoughtful blow-by-blow about how the tapes came public -- and what it all means to journalists -- in the Village Voice last week. Click here for the full story. And Capeci continues to cover the story -- including the Brooklyn DA's missteps -- with his usual insider's punch. Must-reads all around. Click here for the latest from Capeci's ganglandnews.com.
October 31, 2007: Brooklyn district attorney to drop case against fomer FBI agent Lindley DeVecchio after Margulis-Ohnuma client Tom Robbins reveals ten-year old tapes contradicting the main prosecution witness. The Kings County District Attorney's office has been prosecuting ex-FBI agent DeVecchio for allegedly providing information to mob informant Gregory Scarpa that led Scarpa to murder four individuals. The main witness against DeVecchio is Scarpa moll Linda Schiro, who testified this week that Scarpa and DeVecchio discussed information relating to the murders openly in front of her. Problem is, in tape recordings made ten years ago, Schiro told ace reporters Tom Robbins and Jerry Capeci that DeVecchio had nothing to do with three of the four murders. When the defense tried to subpoena Capeci prior to the trial for his notes relating to interviews with Schiro, the famed Gangland columnist -- known as the foremost authority on the New York mafia -- turned to former Daily News colleague Zachary Margulis-Ohnuma for help quashing the subpoena. The court agreed and Capeci's confidentiality arrangement with Schiro was not violated.
But after Schiro testified -- in 180-degree contradiction to her statements to Capeci and Robbins -- Robbins decided he could not remain silent in the face of the risk that an innocent man might go to jail based on a lie. After consulting about the legal consequences with Margulis-Ohnuma, he decided to print the story in the Village Voice. That waived the New York reporter's privilege and Robbins, with Margulis-Ohnuma's assistance, complied with subpoenas for the tapes. Although the district attorney demanded all Robbins' work regarding Schiro, Robbins was required to turn over only the material he wrote about -- i.e. relating to the four murders. That appears, though, to have been enough to persuade the district attorney's office to dismiss the case. Check out Channel 4's thorough coverage here.
October 25, 2007: Former MDC Brooklyn Captain acquitted of civil rights charge, convicted of conspiracy and false statements. After a hard fought trial in the Eastern District of New York, Margulis-Ohnuma client Salvatore LoPresti was convicted of six out of seven charges brought, but acquitted of the key charge of violating another person's civil rights. Full details are available in the New York Times. Click here.
September 5, 2007: Enforcement in cyberspace. Despite the Larry Craig sting operation, the overwhelming direction of enforcement of sex crime is online. More and more federal and local police agencies are joining in, trolling "undercover" in chat rooms, myspace.com and other venues for would-be sex criminals, including prostitutes and their customers. The latest report in the New York Times focuses on craigslist.org, the popular classified advertising site. Apparently, local cops are setting up stings, both answering ads and placing ads for themselves in the adult sections, looking for illegal sex-for-money. Caveat emptor et vendor. Click here for the full article.
April 11, 2007: Margulis-Ohnuma Wins Reversal of Conviction in the Second Circuit Court of Appeals. In a detailed decision about the propriety of government evidence relating to the state of mind of the accused, the Second Circuit reversed five out of seven counts of conviction against a former attorney who was represented by Zachary Margulis-Ohnuma. The federal appeals court found that the district court made three errors, one of them enough to reverse on the five fraud counts.
The reversible error was the improper admission of lay opinion testimony -- unsupported testimony by a cooperator as to what the cooperator thought the defendant meant when he said certain words. The second error -- and the court did not reach the question of whether it was reversible, since the opinion testimony required reversal -- was testimony about what others knew used to prove what the defendant knew. The final error was an erroneous "conscious avoidance" instruction given with respect to an obstruction-of-justice count without proper foundation. To get the full story, read the opinion, which can be found here.
March 13, 2007: Second Circuit Court of Appeals Rules Against Doe Class. In a ground-breaking decision, the Second Circuit Court of Appeals has overturned Judge Denny Chin holding that the State of New York is free to legislate more onerous provisions for people convicted of sex crimes prior to 1996, when the Sex Offender Registration Act became effective. The decision in Doe v. Pataki can be found here. As a general matter, it appears that people adjudicated Level Two sex offenders will be required to register for life and be subjected to internet community notification, despite the State's agreement to settle the Doe v. Pataki litigation. To find out how the decision applies to you, please call our office at (212) 685-0999.
March 3, 2007: New York's lawmakers appear to have reached agreement after many delays on a civil confinement bill. While the details have yet to play out, this measure and similar ones around the country aim to use civil procedures rather than criminal ones to indefinitely commit individuals thought to be dangerous. I can think of few principles that pose a greater danger to our society than this idea that we can do away with criminal procedures to deprive someone of his or her freedom for an undetermined length of time. New York's law appears to have the protection of a jury trial built into it -- a dubious proposition where the underlying allegations may be so inflammatory that it would be impossible to find a fair jury and most opponents to the commitment would waive the jury anyway. Here is an article in Newsday about the measure. Here is a follow-up from the New York Times.
February 28, 2007: The National Association of Criminal Defense Lawyers has adopted a set of policies relating to the punishment of sex offenses. The NACDL opposes mandatory minimum sentences, mandatory registration schemes, the death penalty and other excessively punitive measures for sex offenses. To read this thoughtful document in full, click here.
February 6, 2007: Attorney Zachary Margulis-Ohnuma Wins Gun Trial. A Brooklyn, New York jury acquitted defendant Jerome Williams of one count of gun possession and one count of menacing after a hard-fought three-week trial conducted by Zachary Margulis-Ohnuma. The jury deadlocked on one additional count. The case was especially interesting because Mr. Williams was shot from behind in the course of being arrested. "Victories in criminal trials are unusual, but here the jury saw that the incident could not have possibly happened the way the police said it did," said Mr. Margulis-Ohnuma. "Both I and Jerome are grateful for the hard work of the medical expert, Dr. Richard Sullivan, and the investigator, Michael Pizzi. Jerome's family pulled together to obtain a just result against terrible odds. My heart goes out to them."
December 13, 2006: Vigilante-ism comes to the web. Check out the New York Times report on the ironically entitled perverted-justice.com. This website seems devoted to getting itself on the news and luring "pedophiles" into committing crimes. The New York Times has the story at Website Hunts Pedophiles, which reports that not everyone is on board with the group's tactics.
In the same vein, we are seeing more and more opportunities for web-surfing to end in tragedy. While the perverted-justice folks seem mostly interested in people setting up meetings with kids they meet on the web -- a terrible idea if there ever was one -- child pornography has become the ultimate digital hot potato. Knowingly emailing a sexually explicit photograph of someone under 18 brings a mandatory five-year imprisonment under federal law (work your way through 18 U.S.C. 2252A or call us for details). While it is hard to believe that isolated instances of such conduct would be prosecuted, engaging in the transmission of child pornography assuredly puts you at the mercy of your government -- and such prosecutions seem increasingly common.
November 21, 2006: New York Governor Pataki Loses Bid to Indefinitely Detain Post-Sentence Sex Offenders without a Hearing. The State's highest court overturned Pataki's plan to keep sex offenders locked up even after they served their prison sentences. The ruling is available by clicking here. Click here for an article explaining it in Newsday explaining it.
October 9, 2006: Registered Sex Offenders Threatened When They Move to Long Island. The New York Times reports on a foiled plot to terrorize registered sex offenders moving into Suffolk County, but local sentiment appears to support the violent tactics: A resident decries what she sees as an effort to "create little sex offender clubs to prey on our children"; landlords are attacked for renting to ex-convicts on the Sex Offender Registry. Click here for the full story.
October 3, 2006: The news from Washington about Representative Mark Foley (R. Fl.) turns the stomach. This was a key leader of the movement to crack down on sex offenders, the co-chair of the Congressional Missing and Exploited Children's Caucus and the author of Draconian legislation meant to harass convicted sex offenders until their dying days. Now he has been caught -- and you have to think he really intended to be caught because what he did was so foolish -- exchanging explicit messages regarding mastrubation practices with a teenage Congressional page (click here for a .pdf of the exchange courtesy of ABC News).
The irony is so rich, it needs no comment; but if you think otherwise, check out what they are saying on Prof. Berman's Sentencing Blog, some deep history at the Wonkette, and the non-reaction from the religious right at AlterNet. The bottom line is this: a few powerful men and women like Mark Foley have built careers exploiting fear, but it is individual defendants who too often suffer the consequences of fear's blindness. Rep. Foley hurt a child and his public career is over. He needs a criminal defense lawyer and I hope he calls me: just like any other defendant, he deserves a zealous advocate to fight the effects of the laws he wrote.
September 27, 2006: State Workers are Wary about Specialized Facility for Sex Offenders. Click here for the story from Utica.
August 24, 2006: U.S.A. Today reports that Sex Crimes Against Children Are Down Dramatically. Click here for the full story, which notes a whopping 79% drop in sexual assaults against adolescents between 1993 and 2003. The story also lists "get tough" measures being taken by individual states. Bottom line -- conviction of a sexual offense is an unmitigated disaster that should be avoided at all costs.
July 30, 2006: National Sex Offender Public Registry Goes Live. The Department of Justice has activated its system to integrate state sex offender registries on the web. Users can now search multiple states for an offender. The system puts together data supplied by the states, making it more accessible for out-of-state users. Attorney General Alberto Gonzalez claims: "The National Sex Offender Public Registry will provide one-stop access to registries from all 50 states and the District of Columbia by the end of the year." The URL is http://www.nsopr.gov/.
July 28, 2006: Appeals Court Rules that Salacious Verbal Descriptions Sent to a Minor Over the Internet Is Not "Dissemination of Indecent Material to Minors" under the Penal Law. The decision vacates the wrongful conviction of Jeffrey Kozlow, a Manhattan real estate lawyer. The court ruled that the law requires "depictions" -- i.e. images -- not just words to support a conviction. Score one for Kozlow's attorney, Nathaniel Z. Marmur, Esq. of New York City's Stillman, Friedman & Shechtman, who won the unanimous decision in the Appellate Division, 2d Department. For more on this case, click here for local news coverage and here for the brief decision itself.
July 19, 2006: Federal Court Orders State to Stop Posting Information on Level Two Sexual Offenders. Finding that the State of New York violated the spirit of a stay granted earlier in the case, Judge Denny Chin of the Southern District of New York issued an order requiring the state to stop posting level two information, effectively delaying implementation of the new law signed by Governor Pataki in June. The decision is likely to be appealed by the state and argued along with other issues -- notably lifetime registration for Level Two offenders -- before the Second Circuit Court of Appeals later this summer. The stakes could not be higher for Level Twos who are part of the Doe v. Pataki class-action (i.e. who were registered in 1996) -- if Judge Chin is upheld on appeal, the nightmare of sex offender registration is behind them; if he is overturned, not only will they be required to register for life, but their names, photos and the probation department's account of their crimes (not what they admitted to or was proved to a jury) will be posted on the Internet. For life. Stay tuned.
July 15, 2006: DCJS STARTS POSTING LEVEL TWO OFFENDERS. Despite the federal lawsuit, New York state has quietly begun posting names, pictures and other identifying information about Level Two sex offenders on their website. Legal Aid has moved to stop the posting, but for now, the information is available to anyone who asks. It is also unprotected from "data-mining" operations so that, even if Legal Aid prevails, the information could stay available through private groups.
July 14, 2006: Attorney Zachary Margulis-Ohnuma wins SORA appeal for wrongly-classified sex offender. In precedent-setting case in the Second Department, an appellate court lowered the risk level of Margulis-Ohnuma's client from Level Three to Level Two, which would expunge him from the registry altogether if pending litigation is resolved in favor of the Doe class. A unanimous appellate panel found that the Supreme Court failed to give sufficient weight to the fact that Margulis-Ohnuma's client had become rehabilitated over 17 years of "exemplary" living. The case was featured in the local press.
June 28, 2006: New York Legislature abolishes statute of limitations for serious sex crimes and puts moderate risk sex offenders on the Internet. In a busy end-of-session push, the New York Legislature gave final approval to two measures that will significantly impact those accused of sex crimes. For people accused of the most serious crimes (such as first degree rape), there will no longer be any statute of limitations: i.e. they can be prosecuted at any time. Click here for the text of the bill sent to the governor on June 23, 2006.
And if you are convicted after being prosecuted at any time, the consequences are even more severe than they were before. A new law puts information about even moderate risk sex offenders on the internet. Previously, only high risk offenders' information was disseminated publicly. This new law will make it even more important to ensure that risk-level adjudications are handled fairly, aggressively litigated and comport with constitutional and statutory protections such as right to counsel, notice and an opportunity to be heard. Click here for a statement from Assembly Speaker Sheldon Silver about the Senate passage of the new law.
June 15, 2006: Immigration officials deport witnesses who would have given exculpatory evidence in a New Jersey human-trafficking case; accusers granted special visas. In a case where the government alleges that a Honduran bar owner "pressured" women immigrants to pay large fees to traffickers and encouraged them to engage in prostitution, there were about two dozen witnesses. Some said the bar owner did nothing wrong: they were deported to Honduras (where defense attorney Henry Mazurek found and interviewed them). Others made salacious accusations after months of prodding: they were given special visas to stay in the United States. At the prodding of defense lawyers, the judge ordered the prosecutors to find victims with exculpatory evidence. Click here for the story from the Newark Star-Ledger.
June 9, 2006: The Dark Spectre of Civil Commitment in New York State. The New York State Legislature is perilously close to passing civil commitment legislation that would permit the indefinite confinement of sex offenders after their prison term is complete. The proposal has drawn near unanimous opposition within the legal community: lawyers working on the front lines know that current penalties are sufficient to punish even the most severe sex crimes. For a report on the issue by the New York City Bar Association, click here. For opposition from legal defense organizations, click here. For the text of the Assembly version of the proposed law, click here.
June 8, 2006: The rape case against Duke lacrosse players appears to be falling apart as another stripper at the party apparently told detectives it never happened -- but they failed to report that to the judge when obtaining arrest warrants. Also, it appears that the alleged victim is not prepared to testify against the defendants anytime soon. See the New York Times story here. Complete coverage of the case in the Times is here.
April 25, 2006: A Westchester Supreme Court Justice has found that an offender's use of his "age and an alleged infirmity to gain access to a victim" is a factor not adequately taken into account by the Sex Offender Registration Guidelines and therefore can serve as a basis for an upward departure. Read the full decision here.
As a result of the judge's decision, an elderly cancer patient (the court does not tell us how old) is adjudicated at Risk Level Three, the highest level, requiring in-person verification every 90 days. The Legal Aid Society represented the defendant at the SORA hearing.
April 24, 2006: Coverage of the Duke lacrosse team rape case. Click here for the North Carolina indictment and other court documents. Click here for New York Times coverage.
April 13, 2006: Federal judge forces New York State to keep its promises to sex offenders convicted before 1996. Federal District Judge Denny Chin of the Southern District of New York has jurisdiction over a class action case in which the Legal Aid Society is fighting for the rights of convicted sex offenders. The State of New York and Legal Aid agreed in 2004 to a program under which some offenders convicted before Megan's Law first took effect in 1996 would be required to register for only ten years. Nonetheless, the state legislature voted to extend the period as it ran out this year. Not so fast, said Judge Chin, in an intellectually sound ruling effectively forcing the state to live up to its end of the bargain -- despite a political consensus to punish sex offenders over and over again. "A contract is a contract," Judge Chin wrote. Read the full decision here.
March 30, 2006: Appellate Division upholds authority to confine mentally ill sex offenders after their term of imprisonment has ended. The Pataki administration has used a provision of the Mental Hygiene Law as a backdoor means to civil commitment -- i.e. placing sex offenders in locked mental institutions after they have served their prison time. An intermediate appellate court upheld the practice today, to the chagrin of the defense community. Click here for the court's decision in Harkavy v. Consilvio.
March 23, 2006: Federal Sentencing CLE Tapes Now Available!
Tapes and DVDs of a lively and informative program on the dramatic changes in federal sentencing over the last year are now available. The program, which provides CLE credit for lawyers, was presented by the City Bar and chaired by this office. It included a panel of well known practitioners as well as a judge, a law professor and a member of the U.S. Sentencing Commission. Click here for more information.
March 13, 2006: Increase in Sex Offender Registration Time Periods ("Duration of Registration and Verification") Goes Into Effect.
Effective January 13, 2006, the New York Legislature has increased the length of time that the lowest level sex offenders must register under the Sex Offender Registration Act. Under the amendment, Level One sex offenders who are not designated as sexual predators, sexually violent offenders or predicate sex offenders must register for a period of 20 years. The time period used to be 10 years. This change makes the reporting requirements even more onerous for people who are convicted of even the most minor sex crimes, with the fewest aggravating factors. Reason given by the Legislature: the duration of registration "should be increased to enhance public safety and provide better tracking and monitoring of sex offenders." As always, please be warned, calculations under SORA are complicated -- you should consult with a lawyer to discuss the particular circumstances of your case.
March 3, 2006: A spate of high-profile sex-crimes stories have hit New York's tabloids. The most tragic, the sex-murder of a 24-year-old criminology student, remains unsolved. It appears to be the work of a stranger, raising (arguably alarmist) fears in the city that a serial killer could be at large.
January 18, 2008: Kings County District Attorney's Office provides a guide to sex offender registration for parents. Click here to see the full report.
December 27, 2007: Attorney Margulis-Ohnuma appointed to the Criminal Justice Act Panel for the Southern District of New York. We are pleased to announce that Principal Attorney Zachary Margulis-Ohnuma has been appointed to the federal CJA panel for the United States District Court for the Southern District of New York, the nation's leading trial court. In his capacity as a CJA attorney, Mr. Margulis-Ohnuma will be offering free, court-appointed legal services to indigent defendants charged in multi-defendant cases in the Southern District of New York. "I am delighted to have the opportunity to help poor people caught up in the federal justice system by serving on the CJA panel in Manhattan," said Mr. Margulis-Ohnuma. "This panel carries on the great tradition of Gideon v. Wainwright at an extraordinarily high level of proficiency. I am honored and humbled to be appointed."
November 15, 2007: More fallout from the "Moll Tapes". The Kings County District Attorney's office not only dropped the case against R. Lindley DeVecchio, but requested a special prosecutor to look into perjury charges against Linda Schiro. A politically ambitious former judge, Leslie Crocker Snyder, will head up the investigation. Judge Snyder founded the Manhattan District Attorney's office special sex crimes unit; she also helped write the Rape Shield law which excludes evidence of an alleged victims' sexual past in sex crimes trials. Snyder was dubbed "dragon lady" in an in-depth Village Voice profile by Margulis-Ohnuma client Tom Robbins when she ran for Manhattan district attorney two years ago. She will no doubt take a hard look at Schiro -- and depend largely on Robbins' reporting with co-author Jerry Capeci to make her case. Let's hope she respects the reporters' rights under the Shield Law in her quest for justice.
Meanwhile, Robbins gave a thoughtful blow-by-blow about how the tapes came public -- and what it all means to journalists -- in the Village Voice last week. Click here for the full story. And Capeci continues to cover the story -- including the Brooklyn DA's missteps -- with his usual insider's punch. Must-reads all around. Click here for the latest from Capeci's ganglandnews.com.
October 31, 2007: Brooklyn district attorney to drop case against fomer FBI agent Lindley DeVecchio after Margulis-Ohnuma client Tom Robbins reveals ten-year old tapes contradicting the main prosecution witness. The Kings County District Attorney's office has been prosecuting ex-FBI agent DeVecchio for allegedly providing information to mob informant Gregory Scarpa that led Scarpa to murder four individuals. The main witness against DeVecchio is Scarpa moll Linda Schiro, who testified this week that Scarpa and DeVecchio discussed information relating to the murders openly in front of her. Problem is, in tape recordings made ten years ago, Schiro told ace reporters Tom Robbins and Jerry Capeci that DeVecchio had nothing to do with three of the four murders. When the defense tried to subpoena Capeci prior to the trial for his notes relating to interviews with Schiro, the famed Gangland columnist -- known as the foremost authority on the New York mafia -- turned to former Daily News colleague Zachary Margulis-Ohnuma for help quashing the subpoena. The court agreed and Capeci's confidentiality arrangement with Schiro was not violated.
But after Schiro testified -- in 180-degree contradiction to her statements to Capeci and Robbins -- Robbins decided he could not remain silent in the face of the risk that an innocent man might go to jail based on a lie. After consulting about the legal consequences with Margulis-Ohnuma, he decided to print the story in the Village Voice. That waived the New York reporter's privilege and Robbins, with Margulis-Ohnuma's assistance, complied with subpoenas for the tapes. Although the district attorney demanded all Robbins' work regarding Schiro, Robbins was required to turn over only the material he wrote about -- i.e. relating to the four murders. That appears, though, to have been enough to persuade the district attorney's office to dismiss the case. Check out Channel 4's thorough coverage here.
October 25, 2007: Former MDC Brooklyn Captain acquitted of civil rights charge, convicted of conspiracy and false statements. After a hard fought trial in the Eastern District of New York, Margulis-Ohnuma client Salvatore LoPresti was convicted of six out of seven charges brought, but acquitted of the key charge of violating another person's civil rights. Full details are available in the New York Times. Click here.
September 5, 2007: Enforcement in cyberspace. Despite the Larry Craig sting operation, the overwhelming direction of enforcement of sex crime is online. More and more federal and local police agencies are joining in, trolling "undercover" in chat rooms, myspace.com and other venues for would-be sex criminals, including prostitutes and their customers. The latest report in the New York Times focuses on craigslist.org, the popular classified advertising site. Apparently, local cops are setting up stings, both answering ads and placing ads for themselves in the adult sections, looking for illegal sex-for-money. Caveat emptor et vendor. Click here for the full article.
April 11, 2007: Margulis-Ohnuma Wins Reversal of Conviction in the Second Circuit Court of Appeals. In a detailed decision about the propriety of government evidence relating to the state of mind of the accused, the Second Circuit reversed five out of seven counts of conviction against a former attorney who was represented by Zachary Margulis-Ohnuma. The federal appeals court found that the district court made three errors, one of them enough to reverse on the five fraud counts.
The reversible error was the improper admission of lay opinion testimony -- unsupported testimony by a cooperator as to what the cooperator thought the defendant meant when he said certain words. The second error -- and the court did not reach the question of whether it was reversible, since the opinion testimony required reversal -- was testimony about what others knew used to prove what the defendant knew. The final error was an erroneous "conscious avoidance" instruction given with respect to an obstruction-of-justice count without proper foundation. To get the full story, read the opinion, which can be found here.
March 13, 2007: Second Circuit Court of Appeals Rules Against Doe Class. In a ground-breaking decision, the Second Circuit Court of Appeals has overturned Judge Denny Chin holding that the State of New York is free to legislate more onerous provisions for people convicted of sex crimes prior to 1996, when the Sex Offender Registration Act became effective. The decision in Doe v. Pataki can be found here. As a general matter, it appears that people adjudicated Level Two sex offenders will be required to register for life and be subjected to internet community notification, despite the State's agreement to settle the Doe v. Pataki litigation. To find out how the decision applies to you, please call our office at (212) 685-0999.
March 3, 2007: New York's lawmakers appear to have reached agreement after many delays on a civil confinement bill. While the details have yet to play out, this measure and similar ones around the country aim to use civil procedures rather than criminal ones to indefinitely commit individuals thought to be dangerous. I can think of few principles that pose a greater danger to our society than this idea that we can do away with criminal procedures to deprive someone of his or her freedom for an undetermined length of time. New York's law appears to have the protection of a jury trial built into it -- a dubious proposition where the underlying allegations may be so inflammatory that it would be impossible to find a fair jury and most opponents to the commitment would waive the jury anyway. Here is an article in Newsday about the measure. Here is a follow-up from the New York Times.
February 28, 2007: The National Association of Criminal Defense Lawyers has adopted a set of policies relating to the punishment of sex offenses. The NACDL opposes mandatory minimum sentences, mandatory registration schemes, the death penalty and other excessively punitive measures for sex offenses. To read this thoughtful document in full, click here.
February 6, 2007: Attorney Zachary Margulis-Ohnuma Wins Gun Trial. A Brooklyn, New York jury acquitted defendant Jerome Williams of one count of gun possession and one count of menacing after a hard-fought three-week trial conducted by Zachary Margulis-Ohnuma. The jury deadlocked on one additional count. The case was especially interesting because Mr. Williams was shot from behind in the course of being arrested. "Victories in criminal trials are unusual, but here the jury saw that the incident could not have possibly happened the way the police said it did," said Mr. Margulis-Ohnuma. "Both I and Jerome are grateful for the hard work of the medical expert, Dr. Richard Sullivan, and the investigator, Michael Pizzi. Jerome's family pulled together to obtain a just result against terrible odds. My heart goes out to them."
December 13, 2006: Vigilante-ism comes to the web. Check out the New York Times report on the ironically entitled perverted-justice.com. This website seems devoted to getting itself on the news and luring "pedophiles" into committing crimes. The New York Times has the story at Website Hunts Pedophiles, which reports that not everyone is on board with the group's tactics.
In the same vein, we are seeing more and more opportunities for web-surfing to end in tragedy. While the perverted-justice folks seem mostly interested in people setting up meetings with kids they meet on the web -- a terrible idea if there ever was one -- child pornography has become the ultimate digital hot potato. Knowingly emailing a sexually explicit photograph of someone under 18 brings a mandatory five-year imprisonment under federal law (work your way through 18 U.S.C. 2252A or call us for details). While it is hard to believe that isolated instances of such conduct would be prosecuted, engaging in the transmission of child pornography assuredly puts you at the mercy of your government -- and such prosecutions seem increasingly common.
November 21, 2006: New York Governor Pataki Loses Bid to Indefinitely Detain Post-Sentence Sex Offenders without a Hearing. The State's highest court overturned Pataki's plan to keep sex offenders locked up even after they served their prison sentences. The ruling is available by clicking here. Click here for an article explaining it in Newsday explaining it.
October 9, 2006: Registered Sex Offenders Threatened When They Move to Long Island. The New York Times reports on a foiled plot to terrorize registered sex offenders moving into Suffolk County, but local sentiment appears to support the violent tactics: A resident decries what she sees as an effort to "create little sex offender clubs to prey on our children"; landlords are attacked for renting to ex-convicts on the Sex Offender Registry. Click here for the full story.
October 3, 2006: The news from Washington about Representative Mark Foley (R. Fl.) turns the stomach. This was a key leader of the movement to crack down on sex offenders, the co-chair of the Congressional Missing and Exploited Children's Caucus and the author of Draconian legislation meant to harass convicted sex offenders until their dying days. Now he has been caught -- and you have to think he really intended to be caught because what he did was so foolish -- exchanging explicit messages regarding mastrubation practices with a teenage Congressional page (click here for a .pdf of the exchange courtesy of ABC News).
The irony is so rich, it needs no comment; but if you think otherwise, check out what they are saying on Prof. Berman's Sentencing Blog, some deep history at the Wonkette, and the non-reaction from the religious right at AlterNet. The bottom line is this: a few powerful men and women like Mark Foley have built careers exploiting fear, but it is individual defendants who too often suffer the consequences of fear's blindness. Rep. Foley hurt a child and his public career is over. He needs a criminal defense lawyer and I hope he calls me: just like any other defendant, he deserves a zealous advocate to fight the effects of the laws he wrote.
September 27, 2006: State Workers are Wary about Specialized Facility for Sex Offenders. Click here for the story from Utica.
August 24, 2006: U.S.A. Today reports that Sex Crimes Against Children Are Down Dramatically. Click here for the full story, which notes a whopping 79% drop in sexual assaults against adolescents between 1993 and 2003. The story also lists "get tough" measures being taken by individual states. Bottom line -- conviction of a sexual offense is an unmitigated disaster that should be avoided at all costs.
July 30, 2006: National Sex Offender Public Registry Goes Live. The Department of Justice has activated its system to integrate state sex offender registries on the web. Users can now search multiple states for an offender. The system puts together data supplied by the states, making it more accessible for out-of-state users. Attorney General Alberto Gonzalez claims: "The National Sex Offender Public Registry will provide one-stop access to registries from all 50 states and the District of Columbia by the end of the year." The URL is http://www.nsopr.gov/.
July 28, 2006: Appeals Court Rules that Salacious Verbal Descriptions Sent to a Minor Over the Internet Is Not "Dissemination of Indecent Material to Minors" under the Penal Law. The decision vacates the wrongful conviction of Jeffrey Kozlow, a Manhattan real estate lawyer. The court ruled that the law requires "depictions" -- i.e. images -- not just words to support a conviction. Score one for Kozlow's attorney, Nathaniel Z. Marmur, Esq. of New York City's Stillman, Friedman & Shechtman, who won the unanimous decision in the Appellate Division, 2d Department. For more on this case, click here for local news coverage and here for the brief decision itself.
July 19, 2006: Federal Court Orders State to Stop Posting Information on Level Two Sexual Offenders. Finding that the State of New York violated the spirit of a stay granted earlier in the case, Judge Denny Chin of the Southern District of New York issued an order requiring the state to stop posting level two information, effectively delaying implementation of the new law signed by Governor Pataki in June. The decision is likely to be appealed by the state and argued along with other issues -- notably lifetime registration for Level Two offenders -- before the Second Circuit Court of Appeals later this summer. The stakes could not be higher for Level Twos who are part of the Doe v. Pataki class-action (i.e. who were registered in 1996) -- if Judge Chin is upheld on appeal, the nightmare of sex offender registration is behind them; if he is overturned, not only will they be required to register for life, but their names, photos and the probation department's account of their crimes (not what they admitted to or was proved to a jury) will be posted on the Internet. For life. Stay tuned.
July 15, 2006: DCJS STARTS POSTING LEVEL TWO OFFENDERS. Despite the federal lawsuit, New York state has quietly begun posting names, pictures and other identifying information about Level Two sex offenders on their website. Legal Aid has moved to stop the posting, but for now, the information is available to anyone who asks. It is also unprotected from "data-mining" operations so that, even if Legal Aid prevails, the information could stay available through private groups.
July 14, 2006: Attorney Zachary Margulis-Ohnuma wins SORA appeal for wrongly-classified sex offender. In precedent-setting case in the Second Department, an appellate court lowered the risk level of Margulis-Ohnuma's client from Level Three to Level Two, which would expunge him from the registry altogether if pending litigation is resolved in favor of the Doe class. A unanimous appellate panel found that the Supreme Court failed to give sufficient weight to the fact that Margulis-Ohnuma's client had become rehabilitated over 17 years of "exemplary" living. The case was featured in the local press.
June 28, 2006: New York Legislature abolishes statute of limitations for serious sex crimes and puts moderate risk sex offenders on the Internet. In a busy end-of-session push, the New York Legislature gave final approval to two measures that will significantly impact those accused of sex crimes. For people accused of the most serious crimes (such as first degree rape), there will no longer be any statute of limitations: i.e. they can be prosecuted at any time. Click here for the text of the bill sent to the governor on June 23, 2006.
And if you are convicted after being prosecuted at any time, the consequences are even more severe than they were before. A new law puts information about even moderate risk sex offenders on the internet. Previously, only high risk offenders' information was disseminated publicly. This new law will make it even more important to ensure that risk-level adjudications are handled fairly, aggressively litigated and comport with constitutional and statutory protections such as right to counsel, notice and an opportunity to be heard. Click here for a statement from Assembly Speaker Sheldon Silver about the Senate passage of the new law.
June 15, 2006: Immigration officials deport witnesses who would have given exculpatory evidence in a New Jersey human-trafficking case; accusers granted special visas. In a case where the government alleges that a Honduran bar owner "pressured" women immigrants to pay large fees to traffickers and encouraged them to engage in prostitution, there were about two dozen witnesses. Some said the bar owner did nothing wrong: they were deported to Honduras (where defense attorney Henry Mazurek found and interviewed them). Others made salacious accusations after months of prodding: they were given special visas to stay in the United States. At the prodding of defense lawyers, the judge ordered the prosecutors to find victims with exculpatory evidence. Click here for the story from the Newark Star-Ledger.
June 9, 2006: The Dark Spectre of Civil Commitment in New York State. The New York State Legislature is perilously close to passing civil commitment legislation that would permit the indefinite confinement of sex offenders after their prison term is complete. The proposal has drawn near unanimous opposition within the legal community: lawyers working on the front lines know that current penalties are sufficient to punish even the most severe sex crimes. For a report on the issue by the New York City Bar Association, click here. For opposition from legal defense organizations, click here. For the text of the Assembly version of the proposed law, click here.
June 8, 2006: The rape case against Duke lacrosse players appears to be falling apart as another stripper at the party apparently told detectives it never happened -- but they failed to report that to the judge when obtaining arrest warrants. Also, it appears that the alleged victim is not prepared to testify against the defendants anytime soon. See the New York Times story here. Complete coverage of the case in the Times is here.
April 25, 2006: A Westchester Supreme Court Justice has found that an offender's use of his "age and an alleged infirmity to gain access to a victim" is a factor not adequately taken into account by the Sex Offender Registration Guidelines and therefore can serve as a basis for an upward departure. Read the full decision here.
As a result of the judge's decision, an elderly cancer patient (the court does not tell us how old) is adjudicated at Risk Level Three, the highest level, requiring in-person verification every 90 days. The Legal Aid Society represented the defendant at the SORA hearing.
April 24, 2006: Coverage of the Duke lacrosse team rape case. Click here for the North Carolina indictment and other court documents. Click here for New York Times coverage.
April 13, 2006: Federal judge forces New York State to keep its promises to sex offenders convicted before 1996. Federal District Judge Denny Chin of the Southern District of New York has jurisdiction over a class action case in which the Legal Aid Society is fighting for the rights of convicted sex offenders. The State of New York and Legal Aid agreed in 2004 to a program under which some offenders convicted before Megan's Law first took effect in 1996 would be required to register for only ten years. Nonetheless, the state legislature voted to extend the period as it ran out this year. Not so fast, said Judge Chin, in an intellectually sound ruling effectively forcing the state to live up to its end of the bargain -- despite a political consensus to punish sex offenders over and over again. "A contract is a contract," Judge Chin wrote. Read the full decision here.
March 30, 2006: Appellate Division upholds authority to confine mentally ill sex offenders after their term of imprisonment has ended. The Pataki administration has used a provision of the Mental Hygiene Law as a backdoor means to civil commitment -- i.e. placing sex offenders in locked mental institutions after they have served their prison time. An intermediate appellate court upheld the practice today, to the chagrin of the defense community. Click here for the court's decision in Harkavy v. Consilvio.
March 23, 2006: Federal Sentencing CLE Tapes Now Available!
Tapes and DVDs of a lively and informative program on the dramatic changes in federal sentencing over the last year are now available. The program, which provides CLE credit for lawyers, was presented by the City Bar and chaired by this office. It included a panel of well known practitioners as well as a judge, a law professor and a member of the U.S. Sentencing Commission. Click here for more information.
March 13, 2006: Increase in Sex Offender Registration Time Periods ("Duration of Registration and Verification") Goes Into Effect.
Effective January 13, 2006, the New York Legislature has increased the length of time that the lowest level sex offenders must register under the Sex Offender Registration Act. Under the amendment, Level One sex offenders who are not designated as sexual predators, sexually violent offenders or predicate sex offenders must register for a period of 20 years. The time period used to be 10 years. This change makes the reporting requirements even more onerous for people who are convicted of even the most minor sex crimes, with the fewest aggravating factors. Reason given by the Legislature: the duration of registration "should be increased to enhance public safety and provide better tracking and monitoring of sex offenders." As always, please be warned, calculations under SORA are complicated -- you should consult with a lawyer to discuss the particular circumstances of your case.
March 3, 2006: A spate of high-profile sex-crimes stories have hit New York's tabloids. The most tragic, the sex-murder of a 24-year-old criminology student, remains unsolved. It appears to be the work of a stranger, raising (arguably alarmist) fears in the city that a serial killer could be at large.
The most bizarre case -- and, in my opinion, least likely to hold up under scrutiny -- is that of a 37-year-old female daycare worker in Queens who is charged with "raping" a 4-year-old boy at her daycare center. According to Newsday, her lawyer will challenge her unlikely statement to police. The New York Post reports she was recently licensed -- but the daycare (which charged only $100 per week!) has been shut down.
But the most complicated, from a legal standpoint, could end up being the case of a Cravath lawyer who is accused multiple sex acts with at least two underage girls (he allegedly paid their mother, who was also arrested), then of fleeing to Canada to escape prosecution and trying to persuade the alleged victims not to press charges.
January 29, 2006: An innocent Connecticut man was acquitted after retrial on false sex abuse charges. He still faces deportation and other consequences of false accusations of sex abuse against a child at a synagogue. Read New Trial Frees Innocent Man from the Connecticut Post. For more information, see Penniless Man Wins Allies and Acquittal from the New York Times and Accused Molestor Fights For His Freedom for background on the first trial that led to the wrongful conviction.
January 2006: Several laws were passed in the New York legislature last session increasing penalties and restrictions for sex offenders. Under the new laws -
- employers at summer camps must cross-check whether job applicants names appear on the New York sex offender registry
- in addition to name, address and photograph, law enforcement agencies may now publish an offender's alias on the sex offender registry
- law enforcement agencies have to keep a list of "vulnerable" organizations in their jurisdiction that will receive notification of sex offenders' status
- the department of corrections must notify the local department of social services thirty days before a sex offender is released to a homeless housing facility
- sex offender risk determination hearings can proceed even if the offender does not appear (so long as he has been notified in advance)
- sex offenders are prohibited from entering community service programs while serving time as a prison inmate
In addition, new laws may forbid some sex offenders from working on ice-cream trucks or entering school grounds.