Comment on PL 130.53 Persistent sexual abuse.
The new statute (effective 2/1/01) defining the offense of Persistent sexual abuse is worded as follows:
§ 130.53 Persistent sexual abuse. A person is guilty of persistent sexual abuse when he or she stands convicted of sexual abuse in the third degree, as defined in section 130.55 of this article, or sexual abuse in the second degree, as defined in section 130.60 of this article, and, within the previous ten year period, has been convicted two or more times, in separate criminal tran- sactions for which sentence was imposed on separate occasions, of sexual abuse in the third degree as defined in section 130.55 of this article, or sexual abuse in the second degree, as defined in section 130.60 of this article. Persistent sexual abuse is a class E felony. (Emphasis added.)The wording of this offense would seem to raise serious questions of practical if not constitutional dimension.
Most substantive offenses in the Penal Law are constructed as follows: A person is guilty of [offense X] when he or she [engages in conduct constituting the offense X]. (Example: Rape in the first degree by forcible compulsion.) This general pattern for constructing offenses comports with the basic requirement of the Penal Law that the minimum requirement for criminal liability is the commission of conduct consisting of a voluntary act (PL 15.10). Under the language employed in PL 130.53, however, a defendant appears to be subjected to automatic criminal liability for a felony based upon a future event, his conviction for a third specified misdemeanor, an event that takes place, moreover, based on actions of a jury, and entirely without action on his part.
The term "stands convicted" occurs throughout the Penal Law. However, without exception as hitherto employed it refers to proceedings after conviction (see, PL 70.02, 70.04, 70.06, 70.08, 70.10, 165.74, 405.05, 420.00) not to the definition of a substantive offense.
It is instructive to attempt to envision a criminal jury instruction that both tracks the language of the statute, and informs a jury of what act the defendant must be found to have committed in order to be found guilty of Persistent sexual abuse.
May the prosecutor bring a separate indictment for persistent sexual abuse after conviction for the third misdemeanor offense? If so, what voluntary act is the basis for the felony prosecution? If it is the act underlying the final misdemeanor conviction, what about double jeopardy?
Whether the above presents a serious impediment to implementation of the statute or is merely an anomaly that may be cured by judicial construction remains to be seen.
Query - can there be a crime of "attempted persistent sexual abuse"?
Comment on Mandatory Probation Conditions for Sex Offenders
PL 65.10(4-a) provides for certain mandatory conditions of any probationary sentence imposed upon conviction for an offense "defined" in article 130, 235, or 263, or PL 255.25 where the victim was under the age of eighteen at the time of the offense. Query: Is an attempt to commit one of these offenses a crime that is "defined" under the article containing the substantive offense, or under Article 110? One view is that Article 110 defines the crime of attempt. An alternate view is that an attempt constitutes a lesser included offense of the substantive crime and therefore the definition of the substantive crime also defines the essential elements of the attempt. GungaWeb presently takes the view that Article 110 "defines" the crime of attempt, and thus that the new probation condition is not mandatory upon conviction for an attempt.
Note on "Marital Exception" in Sex Offenses
The phrase "to whom the actor is not married" has been removed from substantive offenses defining statutory rape in the third and second degrees (130.25(1),(2), 130.30(1)). However, marital terminology survives in definitions of circumstances constituting "incapacity to consent" (130.05(3)(e), (f), (g)).
Domestic Violence Exception for Hate Crimes?
GungaWeb takes the position that PL 485.05 is not just a "sentencing enhancement" provision, but that it defines a substantive offense, that of a "Hate Crime", which has as its essential elements (1) commission of a "specified offense", and (2) selection of the victim or commission of the specified offense in substantial part because of a perception or belief regarding a protected attribute of a person, whether or not correct. The sentence specified for commission of a Hate Crime varies with the identity of the specified offense (somewhat similarly to Theft of Services, PL 165.15, which is punished as a violation, a class A misdemeanor or a class E felony depending on the type of service stolen and defendant's prior criminal history). A close reading of PL 485.10 supports this view, namely that a hate crime is a substantive offense "defined" within Article 485.
Note under the above section that if the specified offense is a violent felony (PL 70.02(1)), then the hate crime is "deemed" also a violent felony offense.
Now, under year 2000 legislation, a "domestic violence exception" was enacted, providing for alternative indeterminate sentencing upon conviction of violent felonies in certain circumstances (PL 60.12). The domestic violence exception is potentially available "where a court is imposing sentence pursuant to section 70.02 upon a conviction for an offense enumerated in subdivision one of such section, other than an offense defined in article one hundred thirty."
Query: is the domestic violence exception ever potentially available for hate crimes? If so, when?
(One must first concoct an appropriate fact pattern, e.g., a wife assaults her husband in part because of claimed past abuse, but also "in substantial part" because he has just stated to her, perhaps falsely and out of spite, that he is a member of one of the protected groups, for which the wife happens to hold a deep hatred.)
Although a hate crime based on a violent specified offense is "deemed" a violent felony, if considered a substantive offense "defined" in PL 485.05 it is not an offense "enumerated" in PL 70.02(1). Thus, it could be argued the exception is never available.
On the other hand, it could be argued that the language of PL 485.10 means that the hate crime is to be "deemed" enumerated in PL 70.02(1), in which case the exception would be potentially available.
If the exception is ruled available, the next question is whether it is available where the specified offense is defined in Article 130?
(Same factual scenario, except that the wife commits a violent sex offense against her husband for the same reasons.)
PL 60.12 provides the exception is not available where the violent felony is "defined" in Article 130. But since we have taken hate crimes to be "defined" in Article 485, the language of PL 60.12 would not preclude availability of the exception (assuming it were available in the first instance). However, this would create the anomalous situation where the exception would be available for the hate crime, but not for the underlying article 130 specified offense.
GungaWeb dodges the question entirely by stating, "If the domestic violence exception is available", and then stating what the alternative sentence would be.
Applicability of Sex Offender Registration Act (SORA) to Hate Crimes?
For a hate crime predicated on a specified offense that would otherwise be covered by SORA, if the crime of conviction is considered to be 485.05, which is not an enumerated SORA offense, is SORA triggered? On the face of it, no. The other argument would be that the specified offense is an element of the hate crime, so a conviction of the hate crime is a fortiorari a conviction of the SORA crime as a lesser included offense. But, we do not ordinarily consider a conviction as constituting also a conviction of every lesser included offense, for purposes of punishment.
GungaWeb takes the position that only offenses explicitly enumerated in SORA trigger the provisions of that act, that there is no statute that "deems" a hate crime to be enumerated therein, and therefore, SORA is not triggered by a hate crime conviction even where the specified offense is a SORA offense.