MISDEMEANOR CONVICTIONS WHICH DID NOT INVOLVE VIOLENCE OR SEXUAL CONDUCT WERE PROPERLY CONSIDERED BY COUNTY COURT IN DENYING DEFENDANT’S REQUEST FOR A SORA RISK-LEVEL REDUCTION TO LEVEL ONE, DESPITE THE BOARD OF EXAMINERS OF SEX OFFENDERS’ STATEMENT IT “WOULD NOT OPPOSE” A LEVEL ONE RISK ASSESSMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive three-judge dissent, determined County Court properly reduced defendant’s SORA risk-level from three to two, and properly refused to reduce the risk-level to one. The Court of Appeals concluded the 2003 misdemeanor convictions, which did not involve violence or sexual conduct, were properly considered by County Court in denying the level one assessment:

Defendant served 21 years in prison. At first, he denied responsibility for his criminal conduct and refused to participate in sex offender treatment, but he eventually took responsibility and enrolled in treatment, which he completed. Defendant was released to parole in 1998, and the sentencing court determined him to be a level three risk pursuant to SORA. … In 2003, while still on parole, defendant was convicted of two misdemeanors: attempted auto stripping and attempted possession of burglary tools. He has no other convictions since his 1998 release.

In 2021, defendant petitioned under Correction Law § 168-o (2) to modify his risk level classification to level one. Defendant argued that he posed a low risk of reoffense based on his engagement in one-on-one outpatient sex offender treatment from 1998 to 2008; his steady full-time employment, including his current job, which he had held for 17 years; his stable and loving relationship with his wife, whom he met in 2008; his role as stepfather to his wife’s daughter; and his age of 66 years. Defendant also noted that he had fully complied with his SORA obligations since his release 23 years earlier and, aside from his 2003 misdemeanor conviction, had not reoffended. He submitted letters of support from his counselor, wife, and stepdaughter. In addition, he submitted the report of an expert psychologist who examined him and concluded that his risk of reoffense was low, and that requiring him to register at risk level three was no longer necessary for purposes of public safety. At the court’s request … , the Board submitted an “updated recommendation” stating that it “would not oppose” defendant’s request for a modification to level one. * * *

[The] evidence included the nature of the underlying offense, which defendant committed while on parole for a prior sex crime, defendant’s prior offenses, and defendant’s 2003 misdemeanor conviction of crimes committed while on parole for the underlying offense, for which he received a parole violation. Although the misdemeanors appear to have involved no violence or sexual component, we cannot conclude that the court’s consideration of that factor, along with all the other factors, constitutes an abuse of discretion as a matter of law. * * *

… [T]he question is whether his more recent criminal conduct bears on the risk of his committing future sex offenses. Under the dissent’s proposed rule, the SORA court would be prohibited from considering that defendant violated the law and his parole [in 2003] when he was caught with burglary tools after being convicted of raping a young woman during the course of a burglary also committed while defendant was on parole … . We decline to endorse that untenable result. People v Shader, 2024 NY Slip Op 05873, CtApp 11-26-24

Practice Point: Here the Board of Examiners of Sex Offenders (Board) did not oppose a defendant’s request for a risk-level reduction to level one. The Court of Appeals upheld County Court’s level-two designation, which was based in part of two misdemeanor convictions of nonviolent offenses which did not involve sexual conduct. There was an extensive dissent.