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THE JUDGE IN THIS SORA RISK-LEVEL PROCEEDING DID NOT MAKE DETAILED FINDINGS OF FACT, REQUIRING REMITTAL; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, IN PART BECAUSE COUNSEL DID NOT ARGUE FOR A DOWNWARD DEPARTURE (THIRD DEPT).

The Third Department, reversing County Court’s level-three SORA risk-assessment, noted that the judge failed to set forth all of the relevant findings of fact and determined defense counsel was ineffective. Defense counsel was not aware that youthful offender adjudications can be considered by the SORA court and defense counsel failed to argue for a downward departure. The departure would have been warranted because defendant, who was 17 at the time, had been charged with a misdemeanor based on having sex with his girlfriend:

Failure to comply with the statutory mandate to make detailed findings on the record would alone require that the matter be remitted to County Court … . * * *

The only argument advanced by defendant’s counsel at the SORA hearing was a challenge to the assessment of 30 points under risk factor 9, on the basis that a youthful offender adjudication should be precluded in assessing defendant’s sex offender classification. That argument, however, was devoid of merit … , and demonstrated counsel’s unfamiliarity with existing and applicable case law … . * * *

… [Counsel] did not request a downward departure from the presumptive risk level three classification. The crime underlying the youthful offender adjudication was the class A misdemeanor of sexual misconduct … , stemming from defendant, who had just turned 17, having sexual intercourse with his girlfriend, who was about two months younger. Downward departure has been found appropriate where there is a “relatively slight age difference between [the] defendant and the victim [and] undisputed evidence that the victim’s lack of consent was premised only on her inability to consent by virtue of her age” … . Notwithstanding facts and case law that could support a reasonable argument for a downward departure here, counsel failed to make such a request. In our view, the foregoing establishes that defendant was deprived of the effective assistance of counsel … . People v Wilcox, 2023 NY Slip Op 06175, Third Dept 11-30-23

Practice Point: The judge in a SORA risk-level proceeding is required to make detailed findings of fact.

Practice Point: Defense counsel in a SORA risk-level proceeding is ineffective if counsel is not aware youthful offender adjudications can be considered by the SORA court.

 

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THE JUDGE DID NOT INCLUDE FINDINGS OF FACT IN THE SORA RISK-ASSESSMENT ORDER; THE ATTORNEY GENERAL WAS NOT NOTIFIED OF DEFENDANT’S CONSTITUTIONAL ARGUMENTS; ORDER REVERSED (THIRD DEPT).

The Third Department, reversing County Court, determined County Court’s order failed to included the required findings of fact. In addition, the Attorney General should have been notified of defendant’s constitutional arguments:

County Court’s order failed to set forth its findings of fact and conclusions of law as required by Correction Law § 168-n (3). The March 2022 order states that at a hearing held on an unspecified date, the court “set out its findings of fact . . . which support the assignment of points for each risk factor.” No such findings are set forth in the order and, if placed on the record at the hearing, no hearing transcript is contained in the record. Absent any record findings of fact and conclusions of law by the court, this Court is precluded from conducting a meaningful appellate review of the assessment of points and defendant’s risk level classification. As such, the matter must be remitted … . Further, to the extent that defendant raises direct constitutional challenges to certain portions of Correction Law § 168, as set forth in his memorandum submitted to County Court, the record is devoid of any indication that the Attorney General was timely notified of such challenges or whether the court ruled on any of the issues raised. In view of the foregoing, County Court’s March 30, 2022 order is reversed and the matter remitted for further proceedings. People v Kelsey, 2023 NY Slip Op 06186, Third Dept 11-30-23

Practice Point: The Correction Law requires that an order in a SORA risk-level proceeding include findings of fact.

Practice Point: Where a defendant raises constitutional arguments in a SORA risk-level proceeding, the Attorney General must be notified.

 

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WHERE, AS HERE, THE SORA COURT EXPRESSLY FINDS THERE WAS NO SEXUAL CONDUCT OR MOTIVE UNDERLYING THE UNLAWFUL IMPRISONMENT OF A CHILD, THE REQUIREMENT THAT DEFENDANT BE DESIGNATED A SEX OFFENDER VIOLATES DEFENDANT’S DUE PROCESS RIGHTS (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, determined requiring defendant to register as a sex offender based upon an nonsexual unlawful imprisonment of a child violated defendant’s right to due process of law:

Defendant stole money at gunpoint from his aunt in the presence of his 10-year-old cousin for which he pleaded guilty to, inter alia, the unlawful imprisonment of the child. For this crime, New York requires that he register as a sex offender and comply with the Sex Offender Registration Act (SORA). It is undisputed that the crime was non-sexual and that the SORA court found that defendant is not a sex offender and poses no sexual threat. Nevertheless, the courts below felt constrained by People v Knox (12 NY3d 60 [2009]) to impose SORA requirements. Defendant contends that the holdings in Knox and its companion cases are distinguishable and do not control his as-applied challenge. We agree and conclude that requiring defendant to register violates his due process rights and does nothing to further the legislative purpose of SORA to protect the public from actual sex offenders. * * *

… [T]he core holding and reasoning in Knox does not control here where defendant’s criminal behavior and his lack of future risk of sexual harm to children distinguish him from the Knox defendants. The Knox Court’s conclusion that designating those three defendants as sex offenders and mandating their SORA registration was rationally related to the government’s interest in protecting children from sexual assault lacks force here, where defendant’s offense belies any such threat. Where a SORA court expressly finds that there was no sexual conduct or motive and no risk of future sexual offense, application of the sex offender label cannot be justified on the ground that a defendant may pose a risk of future sexual misconduct, and there is no further administrative burden in reaching that conclusion. Applying SORA to defendant violates his due process rights by impinging on his liberty interest to be free of the improper designation and registration as a “sex offender.”  People v Brown, 2023 NY Slip Op 05973, CtApp 11-21-23

Practice Point: Here the SORA court found there was no sexual conduct or motive underlying the unlawful imprisonment of the child. Under that circumstance, to designate the defendant a sex offender violates his right to due process of law.

 

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THE CRITERIA FOR “A CONTINUING COURSE OF SEXUAL CONTACT” WERE NOT MET; DEFENDANT’S SORA RISK-LEVEL REDUCED TO LEVEL ONE (SECOND DEPT).

The Second Department, reducing defendant’s SORA risk-level assessment to level one, determined the People did not demonstrate “a continuing course of sexual contact:“

The Guidelines provide, in part, regarding risk factor 4, that “an offender has engaged in a continuing course of sexual contact when he [or she] engages in either (i) two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours, or (ii) three or more acts of sexual contact over a period of at least two weeks” … .

In this proceeding, the People failed to meet their burden of proof on risk factor 4 since they failed to establish, by clear and convincing evidence, that the two acts of sexual contact the defendant committed against the victim were separated in time by at least 24 hours … . People v Parez, 2023 NY Slip Op 05526, Second Dept 11-1-23

Practice Point: There must be 24 hours between acts of sexual contact to constitute “a continuing course of sexual contact” under the SORA risk-level guidelines; not the case here.

 

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SUPREME COURT SHOULD NOT HAVE BASED AN UPWARD DEPARTURE IN THIS SORA RISK-ASSESSMENT PROCEEDING ON GROUNDS NOT RAISED BY THE PEOPLE WHERE THE DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO CONTEST THOSE GROUNDS (SECOND DEPT).

The Second Department, reversing the SORA risk level assessment, determined defendant should have been given the opportunity to contest the grounds for an upward department not raised by the People:

A “SORA court deprive[s a] defendant of those basic procedural guarantees when it upwardly depart[s] from the presumptive risk level without affording [the] defendant notice or an opportunity to contest the basis for the departure” … .

Here, the Supreme Court erred in basing its decision to depart from the presumptive risk level, in part, upon grounds that were not raised by the People and of which the defendant had no notice or an opportunity to contest ,,, , People v Cutting, 2023 NY Slip Op 05524, Second Dept 11-1-23

Practice Point: A SORA risk-level assessment cannot be based on grounds of which the defendant was not given notice or the opportunity to contest.

 

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DEFENDANT WAS NOT GIVEN NOTICE OF SOME OF THE EVIDENCE RELIED ON BY COUNTY COURT FOR THE SORA RISK ASSESSMENT; THE MATTER WAS REMANDED FOR A NEW HEARING (THIRD DEPT).

The Third Department, reversing (modifying) County Court, determined defendant was not given notice of some of the grounds County Court relied upon for an upward departure re: defendant’s SORA risk-level assessment. That constituted a violation of defendant’s right to due process:

While … defendant [was] on notice that his persistent sexually-motivated criminal conduct would be relied upon by the People as a factor for upward departure, there is no similar indication that his concurrent conviction for failure to register along with the facts underlying his juvenile delinquency adjudication would be considered … . … “[D]efendant was entitled to a sufficient opportunity to consider and muster evidence in opposition to the request for an upward departure” on the specific bases upon which the People, and consequently County Court, would rely in considering that relief … . … [T]the matter must be remanded for a new hearing, upon proper notice to defendant of the justifications relied upon by the People specific to their request for such relief. People v Maurer, 2023 NY Slip Op 05290, Third Dept 10-19-23

Practice Point: Due process requires that a defendant be notified of all of the evidence which will be relied upon by the People and the court for a SORA risk assessment.

 

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THERE WAS NO EVIDENCE DEFENDANT WAIVED HIS DUE PROCESS RIGHT TO BE PRESENT AT THE SORA RISK-LEVEL HEARING; RISK-ASSESSMENT REVERSED; ALTHOUGH NOT PRESERVED, THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing the SORA risk assessment, determined the People did not demonstrate defendant had waived his due process right to be present at the hearing. Although the error was not preserved, the Second Department considered the appeal in the interest of justice:

A sex offender facing risk level classification under SORA has a due process right to be present at the SORA hearing … . “To establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence” … . Reliable hearsay evidence, such as an affidavit, is admissible to establish waiver … . Here, the record is silent as to whether the defendant received notice of the SORA hearing and there was no evidence, hearsay or otherwise, that the defendant expressed a desire to forego his presence at the hearing. People v Perez, 2023 NY Slip Op 05161, Second Dept 10-11-23

Practice Point: Although a defendant can waive the due process right to be present at the SORA risk-assessment hearing, and the waiver can be proved by hearsay, here there was no evidence of a waiver and the risk assessment was reversed.

Practice Point: At issue here was defendant’s constitutional right to be present at the SORA risk-assessment hearing. Although the issue (his absence from the hearing) was not preserved, the appellate court considered the appeal in the interest of justice.

 

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DEFENDANT WAS NOT GIVEN AN OPPORTUNITY TO RESPOND TO A RISK-ASSESSMENT THEORY RAISED FOR THE FIRST TIME AT THE HEARING; MATTER REMANDED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant should not have been assessed risk-factor points based on a theory which defendant was unable to respond to because it was raised for the first time at the SORA risk-assessment hearing. The matter was remanded:

… [T]he court should have found that the People acted improperly in raising, for the first time at the hearing, as the basis for scoring defendant 15 points for inflicting physical injury under risk factor 1, a new reason or theory that differed from the basis for that scoring specified in the Board’s case summary and in the People’s prehearing submissions. This deprived defendant of the proper advance, informative notice of “the reasons” and “basis” for the People seeking the 15-point determination to which he was entitled under Correction Law § 168-n (3) and due process, so as to afford him a meaningful opportunity to respond to the assessment … People v Jackson, 2023 NY Slip Op 05043, First Dept 10-5-23

Practice Point: If the People present a new risk-assessment theory at the SORA hearing, the court must give the defendant a meaningful opportunity to respond before issuing a ruling.

 

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EQUIVOCAL AND UNSUBSTANTIATED EVIDENCE OF DEFENDANT’S DRUG ABUSE WAS NOT ENOUGH TO JUSTIFY THE 15-POINT DRUG-ABUSE ASSESSMENT UNDER SORA (FOURTH DEPT).

The Fourth Department, reversing County Court, determined 15 points should not have been assessed against the defendant under SORA for drug abuse. The evidence was too weak:

Here, we conclude that the People failed to prove by the requisite clear and convincing evidence that defendant had a history of substance abuse. Although the case summary presented by the People at the SORA hearing establishes that defendant was convicted under the Uniform Code of Military Justice (UCMJ) of possessing an unknown amount of testosterone and using an anabolic steroid … , which offense occurred nearly one year after the underlying sex offense of sexual abuse of a child … , there is “no evidence that defendant was ever screened for substance abuse issues” and ” ‘only very limited information about his alleged prior history of drug . . . abuse’ ” … . Indeed, the sole information in the record regarding defendant’s purported history of drug abuse is the “conclusory hearsay” statement … of a correctional treatment specialist—here, a licensed marriage and family therapist—who commented in the updated treatment assessment he prepared prior to defendant’s release from incarceration that defendant had “substance abuse problems with steroids pre-confinement” but that confinement had “cleaned . . . up” that problem such that defendant now understood “the repercussions of that type of abuse.” Inasmuch as the only evidence that defendant abused steroids consists of a ” ‘hearsay statement[] that [is] vague, . . . equivocal, and otherwise unsubstantiated,’ ” the People failed to establish by the requisite clear and convincing evidence that defendant had a history of substance abuse … . People v Currington, 2023 NY Slip Op 04874, Fourth Dept 9-29-23

Practice Point: Here the evidence purporting to demonstrate defendant had a history of drug abuse was deemed too weak to support the 15-point drug-abuse assessment under SORA.

 

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THE MAJORITY DETERMINED THE DEFENDANT DEVELOPED THE RELATIONSHIP WITH THE COMPLAINANT FOR THE PRIMARY PURPOSE OF VICTIMIZING HER AND THEREFORE 20 POINTS WERE PROPERLY ASSESSED UNDER RISK FACTOR 7; THE COMPREHENSIVE DISSENT ARGUED THERE WAS A PRE-EXISTING RELATIONSHIP WITH THE COMPLAINANT WHICH RENDERD RISK FACTOR 7 INAPPLICABLE UNDER THE COURT OF APPEALS RULING IN COOK (SECOND DEPT).

The Second Department determined, over a comprehensive dissent, that defendant was properly assessed 20 points because his relationship with the 13-year-old victim was deemed to have been established for the primary purpose of victimizing her. The dissent argued there was a pre-existing relationship and, therefore, defendant did not develop the relationship for the purpose of victimization:

… [T]he record indicates that the defendant did not have a long-standing preexisting relationship with the complainant’s parents, and was not involved in the complainant’s life since her infancy. Rather, the defendant had worked with the complainant’s uncle and was invited to the uncle’s house for lunch, where he met the complainant. Thus, this case is readily distinguishable from the circumstances of Cook [29 NY3d at 121]. Contrary to the position of our dissenting colleague, the fact that the defendant’s initial contact with the complainant was unplanned and in person, rather than through the internet, is not determinative with respect to the assessment of points under risk factor 7 based on an offender’s establishment or promotion of a relationship with the victim for the primary purpose of victimization … . The Guidelines, which were created in 1996, do not limit the assessment of points under those circumstances to situations where the offender and the victim initially met online. People v Jony, 2023 NY Slip Op 04674, Second Dept 9-20-23

Practice Point: A long-standing relationship between a defendant and a victim of sexual abuse may demonstrate the relationship was not established for the primary purpose of victimization rendering the assessment of 20 points under risk factor 7 inapplicable. Here the majority concluded there was no such pre-existing relationship, but the dissent made a strong contrary argument.

 

 

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