December 1, 2008: New York Court of Appeals rules that presumptive risk level score must be increased in child pornography cases where the defendant is a stranger to the child depicted.  In a literal interpretation of the plain language of the Sex Offender Registration Act Guidelines promulgated by the New York Board of Examiners of Sex Offenders, New York's highest appeals court has found that a person who possesses pornographic images of a stranger is properly scored with a higher presumptive risk level than a person who "was looking at pictures of his friends' or neighbors' children."  This is nonsense, of course, and the high court appears to recognize that, opining that a crime against a stranger does not necessarily indicate a higher risk when the crime  happens to be possession of child pornography.  But since the lawyer for the defendant challenged the application of the stranger factor -- known as Factor 7 -- and failed to ask for a downward departure under the Guidelines, the offender is stuck on level two, at least until he petitions for reconsideration.

What the Court of Appeals may not understand is that this means the defendant's information will be posted on the State's official internet website, unless and until his petition is granted. In the meantime, it will be picked up by private (often for-profit) websites that will broadcast it far and wide. You cannot un-ring a bell -- and you should make sure your lawyer both challenges every factor he can and asks for a downward departure if one makes sense. The case is People v. Johnson, New York Court of Appeals No. 106, decided November 24, 2008. Please click here for a full text of the opinion.

September 27, 2008: Can the feds search your home if you go on the wrong website?  The answer, at least in New York, appears to be yes.  A series of cases has held that merely belonging to an Internet group whose primary purpose is swapping child pornography is enough to obtain a search warrant of the place where the computer used to search is located.  But in a recent case, the Second Circuit said the FBI -- and the judge who signed off on the search warrant -- went too far when it permitted a search based on the assertion that the defendant had "appeared" to have "gained or attempted to gain" access to a kiddie porn site called cpfreedom.com.  The search should never have happened, the Court held in U.S. v. Falso (Docket No. 06-2721-cr).  But the conviction, carrying a sentence of 30 years in federal prison, was upheld because, at least, the overzealous FBI agents bothered to obtain a warrant, and so they were permitted to rely on the warrant, even though it should not have been issued.

September 5, 2008: Federal court suggests level one sex offenders can petition to be level zero.  If you are a level one sex offender and your period of registration has just been extended by the legislature to 20 years, can you ask the court to get off the registry altogether?  The decision in Woe v. Spitzer, a civil case decided over the summer, seemed to suggest yes.  Judge Leonard D. Wexler of the federal district court for the Eastern District of New York wrote that all "sex offenders required to register under SORA . . . are afforded the statutory right to petition a court for an order modifying the level of notification.  With respect to level one offenders, an adjustment of the risk level below level one would necessarily relieve the offender from any registration requirement."

According to Judge Wexler, then, it appears that SORA provides for a new level zero -- if you can get below level one through a petition for modification (whch can only be brought once a year), you can be relieved from any further registration requirement.  Federal interpretations of state law, however, are usually not binding on state judges.  It remains to be seen whether a New York State SORA hearing court would follow Judge Wexler's reasoning.

June 25, 2008: Supreme Court Rules that the Death Penalty Violates the Constitution When Applied in Cases of Child Rape.  Click here for the text of the full decision by Justice Kennedy.

May 12, 2008: Margulis-Ohnuma Client Acquitted of Sex Abuse and Forcible Touching after Four-Day Trial.  A Manhattan jury acquitted a Bronx man accused of "subway grinding" after attorney Zachary Margulis-Ohnuma argued that the three eyewitnesses who testified were not believable and could not determine criminal culpability based on their observations.  The defendant was charged with forcible touching, an A misdemeanor, and sexual abuse in the third degree, a B misdemeanor.  Attorney Margulis-Ohnuma put on an aggressive case, undermining the credibility of the witnesses through cross-examination and offering two witnesses for the defense who testified that that the defendant, who had impeccable character, was on his way to an important meeting at work.  Most significantly, the alleged victim had made a written statement to the police -- which the district attorney turned over only after intense pressure from the defense -- that undermined her testimony at trial that the touching on the subway was sexually motivated.

The jury came back with the verdict of not guilty on both counts about 45 minutes after they began deliberations.  The defendant would have faced up to a year in jail if convicted.  Because of the acquittal, the arrest and court record will be permanently sealed and are deemed a legal nullity.

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.