SORA Court Must Designate a “Sexually Violent Offender” a Level One Sex Offender

The First Department, in a full-fledged opinion by Justice Andrias, over a dissent, determined that the SORA court does not have the discretion to designate a “sexually violent offender” as anything other than a Level One sex offender.  Here the defendant was convicted of sexual battery in North Carolina.  The North Carolina offense was found to be the equivalent of New York’s Sexual Abuse in the First Degree, a “sexually violent offense” under Correction Law 168-a (3) (a):

“While [the] Court is directed to apply SORA’s Risk Assessment Guidelines . . ., the statutory definition of sexually violent offender, namely, a sex offender convicted of one of several enumerated sexually violent offenses, does not allow for a discretionary determination” … . Thus, although the “level suggested by the RAI [risk assessment instrument] is merely presumptive and a SORA court possesses the discretion to impose a lower or higher risk level if it concludes that the factors in the RAI do not result in an appropriate designation” …, the Court of Appeals has observed that “since 2002, SORA has compelled a defendant convicted of a sexually violent offense’ to register at least annually for life (Correction Law § 168-h [2]; see Correction Law § 168-a [3][a][7]; [b]; L 2002, ch 11, § 13). People v Bullock, 2014 NY Slip Op 08265, 1st Dept 11-25-14