The Second Department, in a full-fledged opinion by Justice Leventhal, over a dissent, determined the Board of Examiners of Sex Offenders (Board) and Supreme Court properly considered defendant’s youthful offender adjudication in assessing defendant’s Sex Offender Registration Act (SORA) risk level. The court distinguished People v Campbell, 98 AD3d 5, where it ruled a juvenile delinquency adjudication could not be considered in a SORA risk-level analysis. Here the youthful offender adjudication resulted in a level three risk-assessment. Without the youthful offender adjudication defendant would have been assessed a level-two risk:
[Re:] whether Campbell precluded the Board and the Supreme Court from considering the defendant’s youthful offender adjudication in determining his SORA risk level designation, we note that there are important distinctions between juvenile delinquency adjudications and youthful offender adjudications. While juvenile delinquency adjudications and youthful offender adjudications have somewhat analogous purposes, juvenile delinquency adjudications can only be made in Family Court Act article 3 proceedings, and are based on acts committed by individuals who are too young to be held criminally responsible for their conduct. In contrast, youthful offender adjudications can only follow a criminal conviction. Comparing the relevant sealing provisions of the Family Court Act and the Criminal Procedure Law, it is clear that while evidence from juvenile delinquency proceedings is inadmissible in judicial proceedings, with an exception permitted only for sentencing in a criminal action (see Family Ct Act § 381.2[1]), sealed youthful offender adjudications may be made available if there is specific statutory or judicial authorization to do so (see CPL 720.35[2]…). Thus, as the People correctly contend, the statutory restrictions on the use of juvenile delinquency records addressed by this Court in Campbell are significantly different from the statutory restrictions on the use of youthful offender adjudications. Taking these distinctions in the statutory sealing provisions into account, we conclude that Campbell does not preclude the Board or the courts from considering a defendant’s youthful offender adjudication in determining his SORA risk level designation. * * *
… [A]s amended in 2011, [CPL 168-1(1)] clearly provides that members of the Board are employees of DOCCS, and that all official records relating to a youthful offender adjudication are to be made available to DOCCS [Department of Corrections and Community Services] (see CPL 720.35(2). Where, as here, the language of a statute is clear and unambiguous, the courts must give effect to its plain meaning … . People v Francis, 2016 NY Slip Op 00488, 2nd Dept 1-27-16
CRIMINAL LAW (YOUTHFUL OFFENDER ADJUDICATION PROPERLY USED TO DETERMINE SORA RISK LEVEL)/YOUTHFUL OFFENDER ADJUDICATION (PROPERLY CONSIDERED IN SORA RISK-LEVEL ASSESSMENT)/SORA (YOUTHFUL OFFENDER ADJUDICATION PROPERLY CONSIDERED IN SORA RISK-LEVEL ASSESSMENT)