The Second Department, in a full-fledged opinion by Justice Leventhal, determined the fact defendant had been deported did not render his appeal of a Sex Offender Registration Act (SORA) level 2 risk assessment academic ( a matter of first impression in the department). The court further determine the SORA court properly increased defendant's risk level based on the extreme violence of the crime, even though the guidelines took violence into account:
… [T]he People have failed to demonstrate that the defendant's involuntary absence from New York renders review of the order designating him a level two offender academic. As a result of his level two designation, the defendant's name, photograph, the details of his crime, and other information can be accessed online at the Division website, notwithstanding the fact that he has been deported … . The outcome of an appeal such as this, which concerns a defendant's risk level designation, will have certain practical consequences with respect to SORA registration requirements, such as the duration of the posting of this information, which is already on the website (see Correction Law § 168-h). * * *
While the SORA Guidelines do take into account the use of violence under risk factor 1, the People's proof demonstrated, by clear and convincing evidence, that the SORA Guidelines did not adequately take into account the true nature of the defendant's actions, and that the defendant's conduct tended to show a higher likelihood of reoffense or danger to the community. The case summary indicates that the defendant repeatedly punched the victim in the face, placed a knife to her throat, threatened to kill her, put his mouth on her breasts and vagina, attempted to place his penis in her mouth, and put his penis in her vagina against her will. Following the incident, which lasted several hours, the police recovered various items within the subject residence that were covered in blood, and the victim's face was both bruised and bloody.
Thus, the defendant was properly designated a level two sex offender. People v Shim, 2016 NY Slip Op 01818, 2nd Dept 3-16-16
CRIMINAL LAW (SORA RISK LEVEL, DEPORTATION OF DEFENDANT DID NOT RENDER APPEAL ACADEMIC)/APPEALS (SORA RISK LEVEL, DEPORTATION OF DEFENDANT DID NOT RENDER APPEAL ACADEMIC)/SEX OFFENDER REGISTRATION ACT (SORA) (USE OF EXTREME VIOLENCE WARRANTED UPWARD DEPARTURE)