THE “ESSENTIAL ELEMENTS” TEST SHOULD BE USED TO DETERMINE WHETHER AN OUT-OF-STATE NON-SEXUAL CONVICTION CAN BE USED TO ASSESS RISK-LEVEL POINTS UNDER SORA (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, determined the “essential elements” test must be used to determine whether a defendant should be assessed risk-level points for non-sexual offenses committed out-of-state. Defendant relocated to New York and was subject to a SORA risk-level assessment based upon a Washington child molestation conviction. Defendant had been convicted of driving while intoxicated in Texas for driving in circles in a grassy area in a park. New York’s DWI statutes do not criminalize such off-road driving. Therefore the Texas conviction should not have been used to assess risk-level points under SORA: In addition the commission of the Washington child molestation offense predated a Washington DWI conviction. Therefore the Washington DWI should not have been used to calculate the risk-level because it was not part of defendant’s “prior criminal history:”

Pursuant to the essential elements test, a court must “compare the elements of the foreign offense with the analogous New York offense to identify points of overlap” and, “where the offenses overlap but the foreign offense also criminalizes conduct not covered under the New York offense, the [court] must review the conduct underlying the foreign conviction to determine if that conduct is, in fact, within the scope of the New York offense” … . … This Court and the other Departments previously have deemed it appropriate to utilize the essential elements test to determine whether a foreign conviction falls within the scope of a New York offense to assess points under any category of risk factor 9 … .. Such application ensures that courts properly assess “prior crimes” and accurately determine a sex offender’s risk level in accordance with acts that the Legislature has deemed apt to criminalize (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 6 [2006]). Consequently, to the extent that we have not expressly held that the essential elements test should be utilized to determine whether a foreign conviction supports the assessment of any points under risk factor 9, we hold so now. People v Pardee, 2024 NY Slip Op 03360, Third Dept 6-20-24

Practice Point: Here the Third Department expressly adopted the “essential elements” test for determining whether an out-of-state DWI can be used to assess risk-level points under SORA. The elements of the Texas DWI statute are different from the elements of New York’s DWI statutes. Defendant’s driving in circles on a grassy area of a park would not constitute DWI in New York. Therefore the Texas conviction should not have been used to assess points.