WHERE DEFENDANT ASSERTED HIS INNOCENCE AT TRIAL, HAS A PENDING APPEAL AND ASSERTS HIS RIGHT AGAINST SELF-INCRIMINATION IN THE SORA PROCEEDING, THE SORA COURT SHOULD NOT ASSESS POINTS UNDER RISK FACTOR 12 FOR FAILURE TO TAKE RESPONSIBILITY FOR THE OFFENSE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt, reversing the SORA court, in a matter of first impression, determined that where defendant asserted his innocence at trial, has a pending appeal, and has asserted his right to avoid self-incrimination, he should not be assessed points under risk factor 12 for failing to take responsibility for the relevant offense:

… [W]e conclude that a defendant who has invoked his Fifth Amendment right against self-incrimination and has a direct appeal pending should not be assessed points under risk factor 12. Considering this conclusion, and in view of defendant’s consistent refusal to incriminate himself and the pending status of his direct appeal, the assessment of 10 points under this factor amounts to a violation of defendant’s Fifth Amendment rights. * * *

… [D]efendant was forced to choose between, on the one hand, exercising his Fifth Amendment right against self-incrimination and being assessed points under risk factor 12, and, on the other, admitting responsibility for the acts that led to his conviction after so far maintaining his innocence and risking that those admissions would be used against him in a potential retrial or form the basis of a perjury charge. Ultimately, the penalty imposed on defendant when presented with this choice is that he was assessed 10 points under risk factor 12 and adjudicated a risk level two sex offender.

The difference between a level one and level two sex offender adjudication is substantial and illustrative of why the penalty is so great as to compel self-incrimination. If defendant were classified as a level one sex offender, he would be required to register annually for a period of 20 years from the date of initial registration (see Correction Law § 168-h), but his personal information would not be listed in a publicly available database. However, as a level two sex offender, defendant would be required to register annually for life (see Correction Law § 168-h), and his photograph, address, place of employment, physical description, age, and distinctive markings would be included in a public database (see Correction Law § 168-q). People v Krull. 2022 NY Slip Op 04783, First Dept 8-2-22

Practice Point: Here defendant asserted his innocence at trial, had a pending appeal and asserted his right against self-incrimination in the SORA proceedings. The SORA court should not have assessed points under risk factor 12 for failure to take responsibility for the offense.