Sex Offender Registration Act (SORA) Archives

THE JUDGE’S SUA SPONTE ASSESSEMENT OF RISK LEVEL POINTS WHICH WERE NOT REQUESTED BY THE PEOPLE OR THE BOARD VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS (SECOND DEPT).

The Second Department, reversing County Court, determined defendant’s due process rights were violated when the judge, sua sponte, assessed risk-level points which were not requested by the People or the Board of Examiners of Sex Offenders:

“The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment” … . “A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment” … . Thus, “a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to respond” … .

Here, as correctly conceded by the People, the County Court’s assessment of these points, without prior notice to the defendant, deprived him of a meaningful opportunity to respond to the assessment … . People v Montufar-Tez, 2021 NY Slip Op 04158, Second Dept 6-30-21

June 30, 2021/0 Comments/by Bruce Freeman

Criminal Law, Sex Offender Registration Act (SORA)

DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE (LEVEL TWO TO ONE) IN THIS CHILD PORNOGRAPHY CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for a downward departure in this child pornography case should have been granted:

At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C) to determine the defendant’s risk level, defense counsel requested that, despite the defendant’s score on the risk assessment instrument, which placed him at the lower end of the presumptive level two risk category, the Supreme Court should exercise its discretion to grant a downward departure and designate the defendant a level one sex offender … . …

Under the circumstances of this case—including, among other things, the small number of images found on the defendant’s cell phone and the absence of any evidence of child pornography on his laptop, the brief period of time during which the defendant is alleged to have collected child pornography, the defendant’s lack of criminal history, and a psychosexual evaluation report finding that the defendant’s risk of reoffense was low—we find that a preponderance of the evidence established that the risk assessment instrument overassessed the defendant’s risk of reoffense, and that his request for a downward departure should be granted in the exercise of discretion … . People v Sestito, 2021 NY Slip Op 03859, Second Dept 6-15-21

June 16, 2021/by Bruce Freeman

Criminal Law, Evidence, Sex Offender Registration Act (SORA)

A FAMILY RELATIONSHIP WITH THE VICTIM, STANDING ALONE, DOES NOT WARRANT AN UPWARD DEPARTURE FROM THE SORA RISK ASSESSMENT GUIDELINES (SECOND DEPT).

The Second Department, reversing Supreme Court’s imposition of an upward departure from the SORA risk assessment guidelines, explained that the existence of a family relationship with the victim, standing alone, does not warrant an upward departure:

People seek an upward departure, they must identify an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the Guidelines, and prove the facts in support of the aggravating factor by clear and convincing evidence … .

Here, as we held in People v Rodriguez (_____ AD3d _____, 2021 NY Slip Op 03475 [2d Dept]), the existence of a familial relationship between the offender and the victim, standing alone, does not constitute an aggravating factor for purposes of granting an upward departure. That relationship has already been taken into account by the Guidelines … , in which the board deliberately excluded familial relationships from the assessment of points on the RAI [risk assessment instrument] and expressly determined that intrafamilial offenders do not pose a comparatively higher risk of recidivism or danger to the community … . People v Velasquez, 2021 NY Slip Op 03625, Second Dept 6-9-21

June 9, 2021/by Bruce Freeman

Criminal Law, Evidence, Sex Offender Registration Act (SORA)

THE BASES FOR THE UPWARD DEPARTURE WERE ALREADY TAKEN INTO ACCOUNT BY THE SORA RISK ASSESSMENT GUIDELINES; UPWARD DEPARTURE REVERSED (SECOND DEPT).

The Second Department, reversing County Court’s upward departure from the SORA guidelines, determined the bases for the departure had been taken into account by the guidelines:

County Court lacked the discretion to upwardly depart from the presumptive risk assessment level because the People failed, as a matter of law, to identify an aggravating factor that was not adequately taken into account by the Guidelines. In seeking an upward departure from the presumptive risk assessment level established at the hearing, the People relied upon the defendant’s prior conviction of public lewdness and indications in the record suggesting that he had not accepted responsibility for his sexual misconduct. The defendant’s prior conviction of public lewdness constituted a misdemeanor sex crime, which is already accounted for under risk factor 9 of the Guidelines … . Similarly, an offender’s lack of acceptance of responsibility is accounted for under risk factor 12 … . People v Mott, 2021 NY Slip Op 03621, Second Dept 6-9-21

June 9, 2021/by Bruce Freeman

Criminal Law, Evidence, Sex Offender Registration Act (SORA)

THE PEOPLE PRESENTED INSUFFICIENT PROOF ON RISK FACTORS 2 AND 4, REQUIRING A 45 POINT REDUCTION (SECOND DEPT).

The Second Department, reducing defendant’s risk assessment by 45 points, without explaining the facts, determined the People did not submit sufficient evidence on two risk factors:

Supreme Court improperly assessed 25 points under risk factor 2 (sexual contact with victim) and 20 points under risk factor 4 (continuing course of sexual misconduct), as the People failed to establish by clear and convincing evidence … that the defendant engaged in sexual contact with the victims or that, under the theory of accessorial liability, he shared the intent of the victims’ clients in engaging in sexual contact … . People v Canady, 2021 NY Slip Op 03618, Second Dept 6-9-21

June 9, 2021/by Bruce Freeman

Criminal Law, Sex Offender Registration Act (SORA)

A FAMILIAL RELATIONSHIP BETWEEN THE SEX OFFENDER AND THE VICTIM (HERE DEFENDANT’S YOUNG STEPDAUGHTER) DOES NOT INCREASE THE RISK TO THE PUBLIC AND THEREFORE CANNOT, STANDING ALONE, BE THE BASIS FOR AN UPWARD DEPARTURE FROM THE RISK ASSESSMENT GUIDELINES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Mastro, determined the existence of a family relationship between the sex offender and the victim (here the defendant’s young stepdaughter) cannot, standing alone, be the basis for an upward departure from the risk assessment guidelines. The purpose of the risk assessment is to assess the threat posed to the public by a defendant. Abuse of a family member, as opposed to a stranger, does not pose a greater risk to the public:

… [T]he inclusion of familial relationships in … risk factor [7] was … expressly considered—and deliberately rejected—by the Board based on its determination that offenders who victimize family members do not pose the same risk of recidivism or danger to the community as offenders who target strangers. * * *

Inasmuch as the Board has already determined in the Guidelines that a familial relationship between an offender and his or her victim does not warrant the imposition of points on the RAI [risk assessment instrument] because it poses a comparatively lower risk of reoffense and danger to the public, that relationship, without more, likewise will not constitute an appropriate aggravating factor to justify an upward departure to a higher risk level. People v Rodriguez, 2021 NY Slip Op 03475, Second Dept 6-2-21

June 2, 2021/by Bruce Freeman

Attorneys, Criminal Law, Sex Offender Registration Act (SORA)

DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT THE SORA RISK-LEVEL ASSESSMENT PROCEEDING IN A CHILD PORNOGRAPHY CASE; COUNSEL MADE AN ARGUMENT WHICH WAS EXPRESSLY REJECTED BY THE COURT OF APPEALS AND THE 2ND DEPARTMENT (SECOND DEPT).

The Second Department determined defense counsel was ineffective the SORA risk-level assessment proceeding:

The defendant was convicted, in federal court, of possession of child pornography … . After a hearing to determine his level of risk pursuant to the Sex Offender Registration Act … , at which the defendant was assessed 30 points under risk factor 3 (number of victims), 30 points under risk factor 5 (age of victims), and 20 points under risk factor 7 (victims were strangers), the defendant was designated a level two sex offender. …

A defendant has a right to the effective assistance of counsel in a SORA proceeding … . Here, the only argument that defense counsel made at the hearing—challenging the assessment of points under risk factors 3 and 7 in light of the nature of the offense—had been soundly rejected by the Court of Appeals … and this Court … . Under the particular circumstances of this case, defense counsel’s failure to apply, instead, for a downward departure on the basis of an overassessment of risk level due to application of points under risk factors 3 and 7 … , demonstrated a misunderstanding of the relevant law and amounted to ineffective assistance of counsel … . People v Bertrand, 2021 NY Slip Op 03338, Second Dept 5-25-21

May 26, 2021/by Bruce Freeman

Criminal Law, Sex Offender Registration Act (SORA)

CRITERIA FOR RECLASSIFICATION OF THE SORA RISK-LEVEL EXPLAINED (THIRD DEPT).

The Third Department explained the criteria for an application for risk-level reclassification under SORA:

Turning to the August 2019 order denying defendant’s application for reclassification, it was his burden “to establish by clear and convincing evidence that the requested modification [was] warranted, and the trial court’s determination will not be disturbed absent an abuse of discretion” … . County Court correctly rejected defendant’s efforts to relitigate various issues addressed in the 2018 order, as an application for reclassification is not “a vehicle for reviewing whether [a] defendant’s circumstances were properly analyzed in the first instance to arrive at his [or her] risk level” … . The sole new development pointed to by defendant was his evaluation by a psychiatrist after the issuance of the 2018 order, and he provided a letter in which the psychiatrist made preliminary findings that defendant neither met the diagnostic criteria for pedophilia nor merited a risk level three classification. The psychiatrist’s final report was not submitted for review, however, and the limited findings offered in the letter were rendered without a review of the raw data underlying the 2015 report and were based upon an account of defendant’s sexual history and offenses that “markedly differ[ed]” from the one referenced in it. The Board accordingly opposed a modification on the ground that defendant had not met his burden of proof and, under the circumstances presented, County Court did not abuse its discretion in agreeing with that assessment … . People v Stein, 2021 NY Slip Op 03086, Third Dept 5-13-21

May 13, 2021/by Bruce Freeman

Attorneys, Criminal Law, Sex Offender Registration Act (SORA)

THE FAILURE TO REQUEST A DOWNWARD DEPARTURE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; THE DISSENT DISAGREED (SECOND DEPT).

The Second Department, over a dissent, determined counsel’s failure to ask for a downward departure in the SORA risk level assessment proceeding did not amount to ineffective assistance of counsel:

Assuming arguendo that in hindsight, the defendant’s counsel, instead of simply opposing the People’s request for an upward departure from the Board’s assessment of points, also should have expressly argued for a downward departure from the assessment of points contained in the People’s RAI, the omission was not so egregious or prejudicial as to deprive the defendant of the effective assistance of counsel … . The defendant has neither demonstrated the absence of a strategic or other legitimate explanation for counsel’s failure to request a downward departure, nor even addressed that issue in the pro se supplemental brief, as is necessary to sustain an ineffectiveness claim … . Further, depictions on the defendant’s phone included young girls who were toddlers to age seven, including those engaged in sexual intercourse and oral sex with men. Under these circumstances, a downward departure would not have been appropriate given “the number and nature of the images possessed by the defendant” … . People v Carman, 2021 NY Slip Op 02834, Second Dept 5-5-21

May 5, 2021/by Bruce Freeman

Criminal Law, Evidence, Sex Offender Registration Act (SORA)

INFECTING A VICTIM WITH HIV CONSTITUTES “PHYSICAL INJURY” WITHIN THE MEANING OF RISK FACTOR 1 RE: THE SEX OFFENDER REGISTRATION ACT; HOWEVER THE FINDING THAT DEFENDANT IN FACT INFECTED THE VICTIM WITH HIV WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a defendant’s infecting a victim with HIV constitutes “physical injury” within the meaning of risk factor 1 re: the Sex Offender Registration Act (SORA). However the evidence that the victim was in fact infected with HIV by the defendant was not clear and convincing and the related 15 points should not have been assessed:

… [W]e conclude that infection with HIV constitutes a physical injury. …

A defendant’s statements as to his or her medical condition—unsupported by any records or evidence from a medical or health professional—have been rejected … , and there is no reason why the same rule should not apply to the People, who are held to a higher standard of proof. Points may be assessed at a SORA hearing based upon physical injury to the victim, based on “clear and convincing evidence in the record, including medical evaluations” … . However, here, no medical evaluations of the victim were in evidence, and the alleged impairment would not be apparent to a layperson. People v Alay, 2021 NY Slip Op 02551, Second Dept 4-28-21

April 28, 2021/by Bruce Freeman

THE JUDGE’S SUA SPONTE ASSESSEMENT OF RISK LEVEL POINTS WHICH WERE NOT REQUESTED BY THE PEOPLE OR THE BOARD VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS (SECOND DEPT).

DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE (LEVEL TWO TO ONE) IN THIS CHILD PORNOGRAPHY CASE (SECOND DEPT).

A FAMILY RELATIONSHIP WITH THE VICTIM, STANDING ALONE, DOES NOT WARRANT AN UPWARD DEPARTURE FROM THE SORA RISK ASSESSMENT GUIDELINES (SECOND DEPT).

THE BASES FOR THE UPWARD DEPARTURE WERE ALREADY TAKEN INTO ACCOUNT BY THE SORA RISK ASSESSMENT GUIDELINES; UPWARD DEPARTURE REVERSED (SECOND DEPT).

THE PEOPLE PRESENTED INSUFFICIENT PROOF ON RISK FACTORS 2 AND 4, REQUIRING A 45 POINT REDUCTION (SECOND DEPT).

A FAMILIAL RELATIONSHIP BETWEEN THE SEX OFFENDER AND THE VICTIM (HERE DEFENDANT’S YOUNG STEPDAUGHTER) DOES NOT INCREASE THE RISK TO THE PUBLIC AND THEREFORE CANNOT, STANDING ALONE, BE THE BASIS FOR AN UPWARD DEPARTURE FROM THE RISK ASSESSMENT GUIDELINES (SECOND DEPT).

DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT THE SORA RISK-LEVEL ASSESSMENT PROCEEDING IN A CHILD PORNOGRAPHY CASE; COUNSEL MADE AN ARGUMENT WHICH WAS EXPRESSLY REJECTED BY THE COURT OF APPEALS AND THE 2ND DEPARTMENT (SECOND DEPT).

CRITERIA FOR RECLASSIFICATION OF THE SORA RISK-LEVEL EXPLAINED (THIRD DEPT).

THE FAILURE TO REQUEST A DOWNWARD DEPARTURE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; THE DISSENT DISAGREED (SECOND DEPT).

INFECTING A VICTIM WITH HIV CONSTITUTES “PHYSICAL INJURY” WITHIN THE MEANING OF RISK FACTOR 1 RE: THE SEX OFFENDER REGISTRATION ACT; HOWEVER THE FINDING THAT DEFENDANT IN FACT INFECTED THE VICTIM WITH HIV WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE (SECOND DEPT).

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