Son of federal judge trying to avoid prison in Manhattan sex tape case

A 50-year-old man accused of surreptitiously filming women engaged in sex acts is trying to avoid jail time by taking his case directly to a top Manhattan criminal judge over the objection of the district attorney’s office.

Daniel McAvoy, of Manhattan, was charged with 29 felony counts of unlawful surveillance in 2022 after investigators seized a trove of cameras and videos of women disrobing or engaging in sexual activity. That included more than 150 DVDs recovered from the Binghamton-area home of his father, longtime Senior U.S. District Judge Thomas McAvoy, Gothamist previously reported.

Court records now show McAvoy’s attorneys are trying to get their client accepted into a program that would allow him to avoid jail time if he pleads guilty and commits to completing an extensive treatment plan. Without it, a guilty conviction could come with a possible jail sentence of up to four years in state prison.

The prosecutor and judge overseeing McAvoy’s case both objected to his attorneys’ request in November. But McAvoy’s legal team has been undeterred, bringing their case directly to Ellen Biben, the administrative judge of the criminal part of state Supreme Court in Manhattan, in an attempt to convince her to bypass the prosecutor and trial judge’s objections.

Biben worked with then-Manhattan District Attorney Cy Vance’s office to launch the ATI court in 2019. The program is unique to Manhattan, and has been hailed as an innovative way to connect people to much-needed services — rather than simply incarcerate them — when they come into contact with the criminal justice system.

In most cases, however, a defendants’ case is only moved to the Felony Alternative to Incarceration (ATI) Court, as the program is known, with the consent of the prosecution. In McAvoy’s case, there’s an exception because his alleged crimes don’t carry a mandatory jail sentence.

“Even if the [prosecutor does] not consent to it, we can still make an application directly to Judge Biben who will consider it,” Wayne Gosnell, one of McAvoy’s attorneys, said during a November court hearing, according to a transcript.

McAvoy was scheduled to appear before Biben in court on Tuesday, but the judge adjourned the hearing to April 30.

His attorneys, Gosnell and Isabelle Kirshner, did not respond to phone calls or an email seeking comment this week. Both are prominent New York City defense lawyers who’ve represented numerous men in sex-crime cases or investigations, including former state Attorney General Eric Schneiderman, Florida Rep. Matt Gaetz and former Columbia University gynecologist Robert Hadden.

In an interview with Gothamist, an alleged victim in the case made clear that she supports a prison sentence. She spoke on the condition of anonymity because the case is still ongoing.

“I want people to know that a woman involved in the case is looking for [McAvoy] to be found guilty and serve time” she said. “He knew what he was doing. He planned it all out. … I didn’t know at all that he was doing this.”

The program is similar to drug court and mental health court, which are known as “problem-solving courts” that connect people with treatment plans, and is meant to apply to people who are not a risk to the public. But unlike those courts, the ATI program is open to all charges — including violent felonies and sex crimes — if a screening process determines a defendant would be a good candidate for an immersive, court-supervised treatment plan rather than incarceration.

When a person is accepted into the ATI program, they’re screened for an individualized treatment plan by Manhattan Justice Opportunities, which is a branch of the Center for Justice Innovation, a nonprofit organization that works with the New York state court system to develop and test new programs.

Joe Barrett, program director for Manhattan Justice Opportunities, says the possibilities for treatment are wide-ranging — anything from connecting someone to drug counseling and mental-health services to helping them secure housing or employment, depending on their specific needs.

“Our mandate from the courts and the legal parties is really to do an individual analysis, and then be as creative as possible in terms of identifying services that exist in New York City and plugging participants into them so their needs can be met effectively,” he said.

Current Manhattan DA Alvin Bragg’s office is a major supporter of problem-solving courts. Since Bragg took office, average monthly referrals to ATI, drug court and mental health court in Manhattan have increased from 30 in 2021 to 62 last year, according to his office.

But, in the opinion of Bragg’s office, McAvoy’s case doesn’t fit the bill, court records show.

McAvoy is accused of secretly recording women in his Manhattan apartments. His 29-count indictment accuses him of filming four different women from a period of 2017 to 2021. DVDs found at his father’s home were labeled with the names of more than a dozen other women, according to a list of evidence seized by investigators.

His father, an 85-year-old federal judge in New York’s Northern District who’s been on the bench since 1986, is not accused of any wrongdoing.

Assistant DA Danielle Turcotte made clear during a court appearance in November that Bragg’s office does not support sending McAvoy’s case to the ATI program. Acting Supreme Court Justice Michele Rodney, the original judge overseeing McAvoy’s case, said she wouldn’t support it, either.

Turcotte said screeners from the DA’s office reviewed McAvoy’s request, including members of its Pathways to Public Safety program that specifically deal with sex crimes.

“I will put on the record that I met with experts and supervisors in our office,” Turcotte said, according to a transcript. “We reviewed the defendant’s submission. And we will not be recommending an ATI disposition.”

Under most circumstances, the prosecution and defense jointly agree to proceed when a case is moved to ATI. That’s partly because many felony charges include a mandatory prison sentence, meaning the DA’s office would have to agree to a plea deal that lessens the top charge before allowing a sentence without prison time.

But at the hearing in November, Gosnell, one of McAvoy’s attorneys, made clear he was aware of cases where Biben has moved cases like his to ATI court “over the People’s objection,” and that he intended to make the case.

McAvoy faces a series of nonviolent, Class E felony charges — the lowest-level felony in New York, which can result in a sentence ranging from a conditional release to probation to prison time.

Since there’s no minimum mandatory jail time attached to the alleged crimes, that triggered an exception that allows McAvoy to make his case directly to Biben, according to the ATI court’s written policies.

“The presiding judge … prosecutor(s), and defense attorney(s) must all consent before a case can be referred to the ATI Court for assessment, except in cases where the sentencing guidelines permit a non-incarceratory sentence over the prosecution’s objection,” the policies state.

That means Biben could allow McAvoy to participate in the ATI program without the DA’s approval — if he’s willing to plead guilty to the charges he’s facing and the court’s case assessors determine he’s not a risk to public safety.

So far, Biben has not given any public indication of how she intends to rule.

McAvoy could be required to register as a sex offender if he pleads guilty.

Under state law, someone convicted of certain types of second-degree unlawful surveillance — the charge McAvoy is facing — is generally required to be listed in the state’s sex-offender registry.

But there is a major caveat: A judge can waive the requirement if they determine it would be “unduly harsh or inappropriate” based on the “nature and circumstances of the crime” and “the history and character of the defendant,” according to state law.

A previous version misstated Daniel McAvoy's age. He is 50 years old.

This story was also updated to include a comment from one of the alleged victims and details of the case, which is adjourned until late April.