Thursday, December 27, 2007

Catherine Wilson, Bureau Chief
Northern Westchester

How A Serious Sex Offender Escaped Authorities In Northern Westchester

In September of this year, Jose Broudwiack, who previously had been convicted as a sex offender in California, was stopped by the Port Chester Police for a traffic violation. Broudwiack had originally entered the United States illegally from his native Peru. He served time in California but failed to show for subsequent court appearances at which time an arrest warrant and a deportation order was issued for him.

By 2002, Broudwiack was in New York State where he was pulled over by a State Trooper for a traffic violation. By then, Broudwiack was using an alias, so no connection could be made to his criminal record. The following year, Broudwiack had his license revoked for failing to answer a court summons. In 2005, Broudwiack’s saga continued – he was once again stopped for a traffic violation. His previous criminal record was not revealed and again, he ignored the summons and had his license revoked.

But it was Broudwiack’s latest activities that caught the attention of his neighbors, local authorities, and government officials. In September, when he was stopped for a traffic violation, the Port Chester Police ran a
background check which uncovered both his revoked license and his prior arrest in California. An additional check revealed that he had never registered as a sex offender in New York. The case was handed over to the State Police. In the interim, Broudwiack made bail on his driving violations and once again disappeared.

In October of this year, the State Police caught up with him in the hamlet of Purdys and charged him with
failing to register as a sex offender in New York, a misdemeanor. At his hearing in North Salem Town Court,
Broudwiack made bail of $10,000. He subsequently failed to show up for his next court appearance and has once again disappeared.

This long saga of a career criminal escaping justice provoked Assemblyman Greg Ball, who proceeded to
accuse the police and the courts of bungling the case. Chat rooms and immigrant forums have filled with rants on the issue under headings such as “Illegal Alien Sex Predator Runs Around United States Unabated”. However,
the rhetoric fails to note precisely how a career criminal, illegal im-migrant or not, can evade detection and incarceration. In these days of rampant identity the , it’s all too easy for a predator like Jose Broudwiack
to run free in our midst for years.

An interview with Lieutenant Glenn Miner of the New York State Police revealed some of the difficulties
encountered when dealing with such a career criminal. Lt. Miner noted that such criminals often carry
multiple identities. An alias means a criminal is simply using a different name. An identification means
the criminal has taken the time to establish the alias so it is verifiable with address or credit checks, even
to the extent of having supportive employment records.

Such identities will be “clean” – that is, they will not show any violations or criminal record. If such an
individual is pulled over for a traffic violation, the apprehending police officer has no way of knowing he is
dealing with a criminal, since the driver’s license produced will not show any infractions or arrests.

The only way the officer can do further checks is if he has “probable cause” – the offender would have to
do something that arouses the of-ficer’s suspicion. Only if the officer becomes suspicious, believing that
he is indeed dealing with a criminal or someone using a false identity, might he detain that individual at
the police station for further investigation, including fingerprint and background checks.

Lt. Miner explained that doing such additional checks is strictly governed by both state and federal
laws. Police officer must have a legitimate rationale for wanting to do the background checks and even then, a
database search is restricted by civil liberty, privacy, and national security laws. It is not a simple matter of
“Google-ing” the individual’s name into a computer and instantaneously retrieving the entire criminal record
à la television crime shows.

Each state and local jurisdiction has its own method of entering criminal data. What constitutes a crime
may be classified differently from jurisdiction to jurisdiction. Lt. Miner noted that a level one sex offense
in New York may not correspond to a similar categorizing in California.

Even when states do share data on criminals, the information often must be sorted through manually before it is useable, hence, a possible reason why the initial traffic stop on Broudwiack did not connect his prior criminal record in California.

In the case of an illegal immigrant such as Broudwiack, many of the crimes may not have been reported to begin with. As the Center for Immigration Studies notes:

“Many victims of immigrant criminals fear reporting crimes to the police because their victimizers are of
the same nationality, and thus are more likely to retaliate in ways that dissuade them from calling the police”.

Of course, all of this assumes that the police have a correct identity to pursue to begin with; which, in the
case of career criminals, is often not the case. The driver’s license that an officer holds in his hand could
be based on a stolen identity.

In that case, even a detailed background check will reveal nothing and the individual will be released. Lt.
Miner noted that there are literally “thousands of ways for a criminal to forge an identity”.

The police have to rely on paper identifications at traffic stops since they currently have no other means of ascertaining identity. Fingerprints and DNA testing would correctly identify an individual, but those checks are beyond the scope of a routine traffic stop.

Again, the officer would have to have “probable cause” to detain the individual at the police station to be able
to conduct such testing. If the criminal is expert at escaping detection, he/she is unlikely to do anything to
raise the suspicions of the officer to warrant detention.

Even when the police have access to fingerprint and DNA checks, the results are not instantaneous or complete.
Fingerprint and DNA evidence would only be available on individuals who have a prior criminal record
(or had this information entered for their employment, such as government employees).

If the individual being detained was a suspect in a crime, but had no prior record, police records would
not have any previous data that would reveal his correct identity. Further, most of the computer data available
for such inquiries are new records – old data is not always entered (many jurisdictions are backlogged and do
not have the funding, or means, to enter this information). And, even when this data is available, analyzing
the fingerprint and DNA test results takes time thus often permitting a criminal to escape on bail in the interim
– they cannot be detained for a lengthy period without cause.

The issue of bail poses yet another set of difficulties when handling career criminals. In Broudwiack’s case, Chief Hawley of the North Salem Police Department noted that the State Trooper did manage to ascertain his correct identity and criminal record. However, Broudwiack still managed to escape arrest by successfully posting bail at
his initial hearing. Despite the fact that he was a convicted sex offender in California, had repeated driving violations and license revocations, and had a deportation order, bail was still legally permissible since
he was being detained for failing to register as a sex offender in New York – a key distinction under the
law. Broudwiack was not being detained as a sex offender; therefore, he could only be detained for what
he was guilty of – failing to register - a crime that is only considered to be a misdemeanor in the State of New
York.

Given Broudwiack’s track record, however, the local magistrate set his bail at $10,000 which is generally
considered to be quite high for a misdemeanor. On a variety of criminal defense websites attorneys have noted “In misdemeanor cases, bail is set at over $5,000 only in extraordinary cases”2 and is “extremely rare”3. But as evidenced by Broudwiack’s case, even setting bail at a relatively high level poses obstacles for some criminals.

When the criminal in question has multiple stolen identities, he/she may also have access to the funds associated with those identities enabling them to post bail for hundreds of thousands of dollars using “other people’s money”. If the criminal cannot make bail either with their own funds, from friends and family, or through stolen resources,
that poses no problem for them either. There are a plethora of bail bondsmen who will front the money for them.

These bondsmen advertise that “collateral (is) not always required” and to “ask about our returning customer discounts”! Given the network of defense attorneys and bail bondsmen, the complexity of the police databases,
the legal restrictions governing detainment, and the availability of stolen identities, the odds of a Broudwiack, or any other criminal, being able to escape incarceration are pretty favorable. But those odds may soon be declining in the State of New York.

As a result of Homeland Security counter-terrorism investigations, New York State established a clearinghouse
for classified intelligence in August 2003, the Upstate New York Regional Intelligence Center – UNYRIC.

Originally established as a response to 9/11 to track specific crimes; this clearinghouse is now being expanded to exchange information among federal, state, county, municipal, and tribal law enforcement agencies within New
York State.

The center has been renamed the “New York State Intelligence Center” and funds are currently being provided through State Grants to establish “fusion centers” to connect with law enforcement agencies, government agencies, and the private sector. The Westchester District Attorney’s office recently announced that they would establish a unit as a result of the Broudwiack case, but did not indicate that this unit would be a local “fusion center” with accessibility to the State’s regional headquarters.

While greater access to information will allow law enforcement agencies the opportunity to use criminal records, it does not address the complexity of those records.

Both Lt. Miner and Chief Hawley noted the need for a Federal standard for the classification of crimes to enable the sharing of information. Chief Hawley also noted that the standards and guidelines for the establishment of bail for repeat offenders need to be amended.

Currently there are no proposals before the State Legislature that would alter laws governing bail and the ability of a judge to set bail. There are no proposals to reclassify crimes such as Failing To Report As A Sex Offender, or Repeated Minor Offenses from misdemeanors to felonies.

Nor are there any proposals to allow law enforcement greater leeway to detain individuals for background
and identity verifications.

Endnotes:

1. Americans for Legal Immigration, December 8, 2007

2. Storbin & Associates, P.C.;

3. Lauren Asher, Esq.

4. Claremont Williams Bail Bonds Service

Northern Westchester Round-Up

Cortlandt: The two suspects in the crossburning case will return to court on January 11, 2008. The judge issued a
Temporary Order Of Protection barring the defendants from contacting the victims.

Ossining: Town officials approved the 2008 budget for the Village. The $26.3 million budget calls for a 6.7% increase over 2007 due to shortfalls in sales tax revenues. The father of the four-year-old daughter of Anne Trovato has been awarded custody in Westchester Family Court. Ms. Trovato was convicted of killing her mother Patricia Mery in Ossining last year.

Sleepy Hollow: The F.B.I. is investigating allegations of brutality and misconduct by the local police. The investigation stems from the use of Tasers by the police in recent incidents.

Somers: The town board proposed a tax increase of almost 9% for Somers residents for 2008 based on their projections of decreases in sales and mortgage tax revenues and lower interest earnings.

– Catherine Wilson

No comments:

About Me