Michael Gaynor
Did the Brooklyn DA's office refuse to prosecute ACORN crimes?
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By Michael Gaynor
March 5, 2010

Ms. Coulter has a key fact wrong (Ms. Giles' age) and mistakenly suggests that "advancing prostitution" is a crime in New York. Under New York law, there is no crime known as "advancing prostitution" of which anyone can be "guilty."

Ann Coulter thinks that Brooklyn District Attorney Charles Hynes is "on track to win another endorsement from ACORN" because he announced that "no criminality has been found" after his investigation of the videotape of the visit of James O'Keefe and Hannah Giles to ACORN's Brooklyn office for counseling on getting a mortgage for a house of prostitution.

Since ACORN almost always backs Democrats, there's not much room for doubt that Ms. Coulter's right about that.

But Ms. Coulter, in "Subprime Mortgage Crisis Hits Whorehouse" (March 3, 2010) (www.anncoulter.com/),also strongly suggested that prosecutable crimes were overlooked or ignored by DA Hynes' office:

"If his investigators had actually watched the videotapes, they would have found ACORN employees apparently advising a pimp and prostitute on how to defraud mortgage lenders, deposit prostitution money in a bank, hide money from the government and avoid detection while running a whorehouse with teenage girls from El Salvador.

"I'm not a lawyer oh, wait, yes, I am but I count approximately a half-dozen state law crimes being discussed on those tapes, from money laundering to advancing prostitution."

Discussed, yes. But did the discussion constitute prosecutable crime?

That depends upon the facts, the criminal statutes and the rules of statutory construction.

Ms. Coulter:

"Under New York law, a person is guilty of advancing prostitution if he: "knowingly ... aids a person to commit or engage in prostitution (or) ... engages in any other conduct designed to institute, aid or facilitate an act or enterprise of prostitution."

"It is a class D felony (up to seven years in prison) if the prostitute is under 19 years old as the ACORN employees knew Giles was and a class C felony (up to 15 years in prison) if the prostitute is under 16 years old as Giles stated the El Salvadoran girls were. (And if she's under 15 years old, Eliot Spitzer may be involved.)

"If none of the advice given by ACORN on those videotapes constitutes conspiracy or aiding or abetting a crime, see this column next week for my opus: '10 Detailed Plans to Kill George Soros and Why This Might Be Right for You.'"

Folks at the Brooklyn, New York District Attorney's office must be anticipating that column.

Ms. Coulter has a key fact wrong (Ms. Giles' age) and mistakenly suggests that "advancing prostitution" is a crime in New York. Under New York law, there is no crime known as "advancing prostitution" of which anyone can be "guilty."

"Promoting prostitution" IS criminal in New York. There are four degrees of "promoting prostitution" and "advancing prostitution" is an element of each of those crimes.

Here are the pertinent penal statutes:

New York Penal Code Section 230.20 Promoting prostitution in the fourth degree

A person is guilty of promoting prostitution in the fourth degree when he knowingly advances or profits from prostitution.

Promoting prostitution in the fourth degree is a class A misdemeanor.

New York Penal Code Section 230.25 Promoting prostitution in the third degree

A person is guilty of promoting prostitution in the third degree when he knowingly:

1. Advances or profits from prostitution by managing, supervising, controlling or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two or more prostitutes; or

2. Advances or profits from prostitution of a person less than nineteen years old.

Promoting prostitution in the third degree is a class D felony.

Penal Code Section Section 230.30 Promoting prostitution in the second degree

A person is guilty of promoting prostitution in the second degree when he knowingly:

1. Advances prostitution by compelling a person by force or intimidation to engage in prostitution, or profits from such coercive conduct by another; or

2. Advances or profits from prostitution of a person less than sixteen years old.

Promoting prostitution in the second degree is a class C felony.

Section 230.32 Promoting prostitution in the first degree

A person is guilty of promoting prostitution in the first degree when he knowingly advances or profits from prostitution of a person less than eleven years old.

Promoting prostitution in the first degree is a class B felony.

The video of the visit of James O'Keefe and Hannah Giles to the Brooklyn ACORN office definitely shows deplorable advice, but it does NOT show that either ACORN or any ACORN employee was seeking to profit from prostitution or to promote prostitution in the first degree or the second degree.

Does the video show the promotion of prostitution in the third degree, as Ms. Coulter suggested?

No. Ms. Coulter wrongly stated that Hannah Giles was under 19 years of age at the time of the visit. Ms. Giles was born on March 15, 1989 (http://en.wikipedia.org/wiki/Hannah_Giles) and thus over 20 years old at the time.

Does the video show promotion of prostitution in the fourth degree?

Section 230.15 of the New York Penal Code defines "advance prostitution." It states: "A person 'advances prostitution' when, acting other than as a prostitute or as a patron thereof, he knowingly causes or aids a person to commit or engage in prostitution, procures or solicits patrons for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid or facilitate an act or enterprise of prostitution."

In interpreting this statute, a basic rule of statutory construction known as ejusdem generis is to be followed: "When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where 'cars, motor bikes, motor powered vehicles' are mentioned, the word 'vehicles' would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes)" (http://en.wikipedia.org/wiki/Canons_of_statutory_construction).

New York's highest court, in People of the State of New York v. Coleman, 74 N.Y.2d 381 (1989), affirmed "the propriety of the defendant's conviction for attempted promoting prostitution in the second degree." The evidence established that the defendant had approached a 24-year-old undercover police officer whom he believed to be a 15-year-old runaway, encouraged her to engage in prostitution and proposed to act as her pimp.

The Court explained that "although there is ample evidence that the defendant believed the officer to be 15 when he encouraged her to become a prostitute, it was nonetheless impossible for him to have been convicted of the completed crime of promoting prostitution in the second degree since the officer was in fact 24" and noted that "[t]he defendant concede[d] that he could properly have been convicted of promoting prostitution in the fourth degree, a class A misdemeanor where age is not an element of the crime at all."

There's no dispute that Ms. Giles and Mr. O'Keefe were not really in the prostitution business, so there was no prostitution from which to profit or to advance. Thus, there was no promoting prostitution in the fourth degree.

That leaves the possibility of attempted promoting prostitution in the fourth degree.

The Court continued:

"Section 110.00 of the Penal Law states that '[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.' In other words, an attempt is an act done with an intent to commit some other crime. As we noted in People v. Bracey, 41 N.Y.2d 296, 299, 392 N.Y.S.2d 412, 360 N.E.2d 1094, the theory is that although the defendant may have failed in the purpose, the conduct can be treated as a crime in itself if carried far enough to cause a sufficient risk of harm. In order to prove an attempt, it is necessary to establish (1) that the defendant had the intent to commit a specific offense; and (2) that the defendant engaged in some affirmative act to carry out that intent (id., at 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094; see also, People v. Moran, 123 N.Y. 254, 257, 25 N.E. 412).

The Brooklyn District Attorney's Office apparently concluded that no one had the requisite criminal intent, or "engaged in some affirmative act to carry out that intent" within the meaning of the statute as interpreted in accordance with the ejustum generis rule, or went "far enough to cause a sufficient risk of harm." Without the benefit of reviewing all the physical evidence and hearing all the grand jury testimony (including the testimony of Andrew Breitbart," I am not in a position to accuse the Brooklyn District Attorney's Office of tolerating a crime that should have been prosecuted.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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