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THE JUDGE’S ASSESSING SORA RISK-LEVEL POINTS NOT REQUESTED BY THE PEOPLE VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS OF LAW; THE JUDGE FAILED TO MAKE THE FINDINGS REQUIRED BY THE CORRECTION LAW FOR AN UPWARD DEPARTURE; DETERMINATION VACATED (FOURTH DEPT).

The Fourth Department, reversing the SORA risk level determination, held that the judge violated defendant’s right to due process of law by assessing points that were not requested by the People, and violated the Correction Law requirements for imposing an upward departure:

Although defendant failed to object to the assessment of points … when the court rendered its oral decision, we “review defendant’s contention in the interest of justice in light of the substantial infringement upon [her] due process and statutory rights” … .

… [T]he court failed to comply with the requirement of Correction Law § 168-n (3) that it set forth the findings of fact and conclusions of law upon which it based its decision to grant the People’s request for an upward departure … . In its decision, the court merely concluded, under the first part of the relevant three-part analysis, that the People had identified “aggravating . . . circumstances . . . of a kind or to a degree not adequately taken into account by the guidelines” … . At no time in its decision did the court render a determination on the other two parts of the relevant analysis. Rather, after identifying the aggravating circumstances, the court conclusorily granted the People’s application for an upward departure, without ever “weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant’s dangerousness and risk of sexual recidivism” … . People v Ridley, 2025 NY Slip Op 05599, Fourth Dept 10-10-25

Practice Point: If a judge assesses SORA risk-level points not requested by the People, the defendant’s due process rights are violated.

Practice Point: In granting an upward departure in a SORA risk-level-assessment proceeding, the judge must make the findings required by the Correction Law.

 

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THE SORA HEARING JUDGE SHOULD NOT HAVE GRANTED AN UPWARD DEPARTURE, INCREASING DEFENDANT’S SORA RISK LEVEL, BASED ON INFORMATION WHICH WAS NOT IN THE RISK ASSESSMENT INSTRUMENT (RAI) OR RAISED BY THE PEOPLE AT THE HEARING; TO DO SO VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge should not have increased defendant’s SORA risk-level based upon information which was not included in the risk assessment instrument (RAI) or raised by the People at the SORA hearing:

“The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine [their] risk level pursuant to SORA and a meaningful opportunity to respond to the [RAI]” … . It is therefore improper for a court to depart from the presumptive risk level based on a ground for departure that has never been raised (see id.). Here, because defendant’s employment was not presented as a basis for departure in the RAI or by the People at the hearing, defendant was not afforded notice and a meaningful opportunity to respond to it … . We therefore reverse the order, vacate defendant’s risk level determination, and remit the matter to County Court for a new risk level determination and, if necessary, a new hearing in compliance with Correction Law § 168-n (3) and defendant’s due process rights … . People v Lincoln, 2025 NY Slip Op 03930, Fourth Dept 6-27-25

Practice Point: A defendant is entitled to notice of all the evidence which the court will rely for a SORA risk-level assessment such that the defendant has an opportunity to respond.

 

THE SANCTION THAT PETITIONER BE CONFINED TO A SPECIAL HOUSING UNIT (SHU), NOW KNOWN AS SEGRETATED CONFINEMENT, FOR 730 DAYS VIOLATED THE HUMANE ALTERNATIVES TO LONG-TERM SOLITARY CONFINEMENT ACT (HALT ACT); THE CORRECTION LAW LIMITS SUCH CONFINEMENT TO 15 CONSECUTIVE DAYS (THIRD DEPT).

The Third Department, in a full fledged opinion by Justice Pritzker, determined that the Humane Alternatives to Long-Term Solitary Confinement Act (the HALT Act) prohibited petitioner’s confinement in a special housing unit (SHU), now known as segregated confinement, for 730 days. The maximum permitted by the Correction Law is 15 consecutive days:

… [P]ursuant to Correction Law § 137 (6) (k) (i), DOCCS [NYS Department of Corrections and Community Supervision] “may place a person in segregated confinement for up to three consecutive days and no longer than six days in any [30-]day period if, pursuant to an evidentiary hearing, it determines that the person violated [DOCCS] rules which permit a penalty of segregated confinement. [DOCCS] may not place a person in segregated confinement for longer than three consecutive days or six days total in a [30-]day period unless the provisions of subparagraph (ii) . . . are met.” … Correction Law § 137 (6) (k) (ii) provides that DOCCS “may place a person in segregated confinement beyond the limits of subparagraph (i) . . . or in [an RRU] only if, pursuant to an evidentiary hearing, it determines by written decision that the person committed one of [certain statutorily provided] acts and if the [C]ommissioner or his or her designee determines in writing based on specific objective criteria the acts were so heinous or destructive that placement of the individual in general population housing creates a significant risk of imminent serious physical injury to staff or other incarcerated persons, and creates an unreasonable risk to the security of the facility.” Although Correction Law § 137 (6) (k) (ii) does not contain a specific temporal limitation, this can be found in Correction Law § 137 (6) (i) (i), which provides, with certain exceptions, that “[n]o person may be placed in segregated confinement for longer than necessary and no more than [15] consecutive days. Nor shall any person be placed in segregated confinement for more than [20] total days within any [60-]day period.” Given these limitations, we find that not only the penalty imposed by the Hearing Officer, but also the reduced penalty of 730 days in SHU, violates the HALT Act. Matter of Peterkin v New York State Dept. of Corr. & Community Supervision, 2025 NY Slip Op 03617, Third Dept 6-12-25

 

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THERE IS NO FEDERAL SEX-OFFENDER-REGISTRATION REGIME; THEREFORE A FEDERAL CHILD-PORNOGRAPHY CONVICTION DOES NOT CONSTITUTE A “FELONY IN ANY OTHER JURISDICTION FOR WHICH THE OFFENDER IS REQUIRED TO REGISTER AS A SEX OFFENDER” WITHIN THE MEANING OF THE CORRECTION LAW; DEFENDANT SHOULD NOT HAVE BEEN CLASSIFIED AS A “SEXUALLY VIOLENT OFFENDER” BASED UPON THE “FOREIGN-FELONY” PROVISION OF THE CORRECTION LAW (CT APP). ​

The Court of Appeals, reversing (modifying) the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined defendant should not have been classified as a sexually violent offender because his federal child pornography conviction did not require registration as a sex offender. The Correction Law defines a “sexually violent offender” to include a defendant who has been convicted of a felony in a foreign jurisdiction and is required to register as a sex offender in that jurisdiction. Because there is no federal sex-offender-registration regime, the foreign-conviction provision of the Correction Law does not apply here:

The primary issue on this appeal from a Sex Offender Registration Act (SORA) risk assessment determination is whether defendant was properly designated as a sexually violent offender under Correction Law § 168-a (3). SORA defines three circumstances under which such a designation is appropriate. Relevant here is the third circumstance: where a defendant stands convicted of “a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred” (Correction Law § 168-a [3] [b]). A plain reading of the statutory language, and application of our precedent in this area, establish that defendant was not required to register as a sex offender in the jurisdiction in which his conviction occurred and, therefore, was improperly designated as sexually violent. * * *

Applying the clear and unambiguous statutory language in this case, defendant cannot be designated as “sexually violent” because he was not required to register as a sex offender in the jurisdiction in which his conviction occurred. This is so because the federal government does not maintain a sex offender registry of the sort that states are required to operate by federal mandate. Although the federal government maintains two sex offender databases, the information contained in them merely represents a collection of registration information acquired from registries maintained by individual state and territorial jurisdictions (see 34 USC § § 20921; 20922). People v Sherlock, 2025 NY Slip Op 02966, CtApp 5-15-25

Practice Point: There is no federal sex-offender-registration regime. Therefore a federal child pornography conviction does not constitute a “felony in any other jurisdiction for which the offender is required to register as a sex offender” within the meaning of the Correction Law. Therefore a federal child pornography conviction does not trigger a “sexually violent offender” SORA designation.

 

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CONFINEMENT IN A RESIDENTIAL MENTAL HEALTH TREATMENT UNIT (RMHU) FOR 17 HOURS A DAY, WITH AT LEAST SEVEN HOURS OF OUT-OF-CELL TIME PER DAY, FOR MORE THAN THREE DAYS, DOES NOT VIOLATE THE HUMANE ALTERNATIVES TO LONG-TERM SOLITARY CONFINEMENT ACT (HALT ACT) (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the sanctions imposed upon petitioner, an incarcerated person with serious mental illness, did not violate the Humane Alternatives to Long-Term Solitary Confinement Act (HALT Act) but did violate the Special Housing Unit Exclusion Law (SHU Exclusion Law):

… [P]etitioner remained in the RMHU [residential mental health treatment unit] where he received at least seven hours of out-of-cell time, therefore he was not in segregated confinement, which is defined as “the confinement of an incarcerated individual in any form of cell confinement for more than [17] hours a day” (Correction Law § 2 [23]). * * * Therefore, based on the foregoing, DOCCS [Department of Corrections and Community Supervision] did not violate Correction Law § 137 (6) (k) (ii) by placing petitioner in the RMHU longer than three days without the requisite findings under the HALT Act.

However … we do find that the disciplinary sanctions, as written, violated the SHU Exclusion Law as set forth in Correction Law § 401. To that end, Correction Law § 401 provides that “[a]n incarcerated individual . . . shall not be sanctioned with segregated confinement for misconduct [in an RMHTU], or removed from the unit and placed in segregated confinement or a[n RRU (residential rehabilitation unit)], except in exceptional circumstances where such incarcerated individual’s conduct poses a significant and unreasonable risk to . . . safety . . . and . . . has been found to have committed an act or acts defined in [Correction Law § 137 [k] [6] [ii]]” (Correction Law § 401 [5] …). “Because the statute is phrased in the disjunctive” … , DOCCS must find that exceptional circumstances existed and a Correction Law § 137 (6) (k) (ii) act occurred if either 1) the incarcerated individual is sanctioned with segregated confinement for misconduct on the unit or 2) the incarcerated individual is removed and placed in segregated confinement or an RRU. Here, the former applies as petitioner was sanctioned, in writing, with segregated confinement in the RMHU but was not found, in a written determination, to have committed an act pursuant to Correction Law § 137 (6) (k) (ii), a fact which is uncontested by either party. Thus, the written disciplinary sanction was in violation of the SHU Exclusion Law. Therefore, the disciplinary sanctions imposed upon petitioner must be annulled. Matter of Walker v Commissioner, N.Y. State Dept. of Corr. & Community Supervision, 2025 NY Slip Op 02834, Third Dept 5-8-25

 

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ALTHOUGH THE DEFENDANT STATE PAROLE OFFICER WAS DRIVING A STATE-OWNED VEHICLE AND ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN THE TRAFFIC ACCIDENT OCCURRED, PLAINTIFF PROPERLY BROUGHT SUIT IN SUPREME COURT AS OPPOSED TO THE COURT OF CLAIMS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the Correction Law did not require that plaintiff bring this traffic accident case involving a Department of Corrections and Community Supervision (DOCCS) parole officer in the Court of Claims. Although the defendant officer was driving a State-owned vehicle and was acting within the scope of her employment at the time of the accident, the lawsuit was properly brought in Supreme Court:

“Not every suit against an officer of the State, however, is a suit against the State” … . “A suit against a State officer will be held to be one which is really asserted against the State when it arises from actions or determinations of the officer made in his or her official role and involves rights asserted, not against the officer individually, but solely against the State” … . If, however, “the suit against the State agent or officer is in tort for damages arising from the breach of a duty owed individually by such agent or officer directly to the injured party, the State is not the real party in interest—even though it could be held secondarily liable for the tortious acts under respondeat superior” … .

Correction Law § 24 (2) provides that claims for damages “arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties” of any State employee shall be brought in the Court of Claims as claims against the State. Thus, Correction Law § 24 “places actions for money damages against [DOCCS] employees within the jurisdiction of the Court of Claims only where the conduct alleged is within the scope of the officer’s employment and in the discharge of his or her official duties” … .

Here, the complaint asserts a single cause of action based on allegations that defendant operated the vehicle in a negligent manner, i.e., that defendant’s alleged negligence arises from her violation of a duty she owed plaintiff as a fellow driver, and not as a DOCCS employee. Thus, plaintiff’s action is “against . . . defendant individually for an alleged breach of a duty of care owed by the defendant directly to [plaintiff], and not one against State officers as representatives of the State in their official capacity which had to be brought in the Court of Claims pursuant to Correction Law § 24” … . Maiorana v Green, 2025 NY Slip Op 01518, Fourth Dept 12-14-25

Practice Point: Although the defendant parole officer was acting within the scope of her employment when she was driving the state-owned vehicle, the traffic accident allegedly breached a duty of care owed directly to the plaintiff by the defendant as a fellow driver, not as a state employee.

 

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THE PORTION OF THE CORRECTION LAW WHICH REQUIRED DEFENDANT BE DESIGNATED A “SEXUALLY VIOLENT OFFENDER,” BASED UPON AN OHIO TELEPHONE-SOLICITATION OFFENSE WHICH DID NOT INVOLVE VIOLENCE, IS UNCONSTITUTIONAL AS APPLIED TO DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a dissent, determined the portion of “Correction Law § 168-a (3) (b), which defines a ‘sexually violent offense’ as a ‘conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred'” is unconstitutional as applied to defendant. Defendant pled guilty to an Ohio offense which prohibits “soliciting” a person 13 to 15 years old by telephone. Violence is not an element of the Ohio offense:

… [W]e conclude that defendant established that he is an “individual[ ] . . . for whom the [sexually violent] offender designation ‘is unmerited’ ” … because the out-of-state conviction was “not sexual[ly violent] in nature and his conduct provides no basis to predict risk of future sexual[ly violent] harm” … . * * *

… [W]e conclude that, as applied to him, the designation of defendant as a sexually violent offender pursuant to the second disjunctive clause of Correction Law § 168-a (3) (b) “unconstitutionally impacts defendant’s liberty interest in a criminal designation that rationally fits his conduct and public safety risk” … . People v Brightman, 2024 NY Slip Op 04654, Fourth Dept 9-27-24

Practice Point: Here the Correction Law required that defendant be designated a “sexually violent offender” based on an Ohio conviction for telephone solicitation of a person between 13 and 15 which did not involve violence. That portion of the Correction Law was deemed unconstitutional as applied to the defendant.

 

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DEFENDANT, PURSUANT TO CORRECTION LAW 168-A (3)(B), WAS DESIGNATED A “SEXUALLY VIOLENT OFFENDER” BASED SOLELY ON HIS OUT-OF-STATE CONVICTION OF A REGISTRABLE SEXUAL OFFENSE WHICH DID NOT INVOLVE VIOLENCE; THE CORRECTION LAW AS APPLIED TO DEFENDANT VIOLATED HIS RIGHT TO DUE PROCESS; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a concurrence and a two-justice dissent, determined designating defendant a “sexually violent offender” based solely upon an out-of-state conviction of a non-violent sexual offense violated defendant’s right to due process. The concurrence argued the Correction Law statute which allows such a “sexually violent offender” designation based on an out-of-state conviction is unconstitutional on its face:

We conclude that designating defendant as sexually violent merely because he had an out-of-state sex conviction requiring out-of-state registration, regardless of whether that underlying offense is violent—as is currently required by the text of Correction Law § 168-a (3) (b)—bears no rational relationship to the legitimate governmental interest of informing the public of threats posed by sex offenders. Indeed, the animating notification purpose of SORA presupposes that the information available to the public as a consequence of a SORA registration is accurate. Where, as here, an offender is designated a sexually violent offender merely because of an out-of-state conviction requiring out-of-state registration, the public is not accurately informed of the true risk posed by the offender. We further conclude that the designation of defendant as a sexually violent offender—augmenting defendant’s SORA registration period from a term of 20 years to his entire lifetime—merely because of the location of the registrable offense does not result in “a criminal designation that rationally fits [defendant’s] conduct and public safety risk” … . People v Malloy, 2024 NY Slip Op 03264, Fourth Dept 6-14-24

Practice Point: The Correction Law (section 168-a (3)(b)) pursuant to which defendant was designated a “sexually violent offender” based solely on an out-of-state registrable offense which did not involve violence was deemed to violate defendant’s right to due process of law.

 

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IT WAS ALLEGEDLY EVIDENT FROM THE EMPLOYEE’S JOB APPLICATION THAT HE HAD BEEN IN PRISON; THE ALLEGED FAILURE TO INVESTIGATE RAISED QUESTIONS OF FACT IN SUPPORT OF THE NEGLIGENT HIRING AND SUPERVISION CAUSE OF ACTION; THE CORRECTION LAW DOES NOT PROHIBIT CONSIDERATION OF PRIOR CONVICTIONS (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the negligent hiring and supervision cause of action against defendant LLC stemming from an altercation between plaintiff and the LLC’s employee (McIntosh) should not have been dismissed. It was allegedly evident from McIntosh’s employment application that he had been in prison:

… [P]laintiff raised triable issues of fact as to whether the LLC “should have known of the employee’s propensity for the conduct which caused the injury” … . It is well settled that “an employer has a duty to investigate a prospective employee when it knows of facts that would lead a reasonably prudent person to investigate that prospective employee” … . McIntosh’s handwritten job application provided facts that should have led the LLC to investigate, as he indicated that he worked at the address of a state prison, he earned a “stipend” instead of the typical hourly wage, and one of his supervisors was a corrections officer, or “C.O.” Although “the depth of inquiry prior to hiring, irrespective of convictions, may vary in reasonable proportion to the responsibilities of the proposed employment,” the record shows that the LLC made no effort to investigate … . Its owner-witness admitted that no background check was performed. She did not know whether a restaurant manager called McIntosh’s past employers, and she had no knowledge of his criminal background, as would have been revealed by a call to the past employer … . Contrary to the LLC’s contention, the Correction Law does not prohibit consideration of a job applicant’s prior convictions, but instead provides a balancing test to determine whether there was a “direct relationship between” a prior offense and the job or whether the employment “would involve an unreasonable risk . . . to the safety or welfare of . . . the general public” (Correction Law §§ 752[1]- Darbeau v 136 W. 3rd St., LLC, 2024 NY Slip Op 01672, First Dept 3-26-24

Practice Point: Where an applicant’s job application indicates the applicant had been incarcerated, an employer’s failure to investigate may support a negligent hiring and supervision cause of action. The Correction Law does not prohibit an inquiry into prior convictions.

 

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DEFENDANT CANNOT APPEAL THE DENIAL OF HIS MOTION TO DISMISS THE SORA RISK-LEVEL PROCEEDING; HE MUST FIRST BE ADJUDICATED BY THE SORA COURT AND MAY SUBSEQUENTLY APPEAL REQUESTING AN ANNULMENT (FIRST DEPT). ​

The First Department, in full-fledged opinion by Judge Pitt-Burke, determined the defendant could not appeal an interlocutory order which denied his motion to dismiss the SORA proceeding. Defendant had been convicted of a federal offense and argued the Penal Law did not criminalize the use of morphed images which did not depict actual sexual conduct by a child. The First Department held the defendant must go through with the SORA hearing and subsequently make this argument on appeal:

By its plain language, Correction Law § 168-n (3) only permits an appeal “as of right” from the SORA court’s risk level determination order. To find otherwise would be to ignore the legislative intent of the statutory language … . Namely, the procedural safeguards afforded to defendant in Correction Law § 168-n (3) require the SORA court to conduct a risk assessment hearing before it renders an order requiring him to register as a sex offender in New York and assigns him a risk level designation. Until a hearing is held and a determination made, the defendant’s liberty interest as related to the SORA proceeding has not yet been adjudicated (see Correction Law § 168-n [3]). …

Under to CPLR 5701 (a) (2) (v), “[a]n appeal may be taken to the appellate division as of right . . . from an order . . . where the motion it decided was made upon notice and it . . . affects a substantial right.” Even assuming defendant’s interpretation of Correction Law § 168-n (3) is correct, the interlocutory order appealed from does not require defendant to register as a sex offender. In fact, the very procedural safeguards noted above prevent the SORA court from issuing such an order without a hearing. People v Lewis, 2024 NY Slip Op 00248, First Dept 1-18-24

Practice Point: Defendant could not appeal the denial of his motion to dismiss the SORA risk-level proceeding before it was conducted. Defendant contended the federal offense of which he was convicted involved morphed images that did not depict actual sexual conduct by a child, a circumstance, he argued, not covered by the New York Penal Law.

 

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