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A SORA RISK LEVEL ASSESSMENT SHOULD INCLUDE THE POTENTIAL FOR REHABILITATION; HERE PSYCHOLOGICAL EVIDENCE AND EVIDENCE OF FAMILY SUPPORT WARRANTED A DOWNWARD DEPARTURE (THIRD DEPT).

The Third Department, reducing defendant’s SORA risk level from two to one, in a full-fledged opinion by Justice Garry, over an extensive dissent, determined the psychological evidence, evidence of family support, and evidence of defendant’s long-term relationships warranted the downward departure. The nature and weight of the psychological evidence, including test results, is discussed in depth:

Defendant attended college in New Hampshire but left early and did not graduate as a result of grief stemming from the loss of multiple family members. He thereafter remained in New Hampshire and worked as a soccer coach at a local high school. In 2019, defendant cultivated a short-term sexual relationship with a 14-year-old student whom he was coaching; alcohol was involved. He ultimately pleaded guilty in New Hampshire to four counts of felonious sexual assault, and misdemeanor charges related to the provision of alcohol. * * *

The potential for rehabilitation should be recognized and considered in judicial review and imposition of SORA restrictions. As has been stated, “our application of SORA and its [g]uidelines holds the promise of the recognition of rehabilitation so as to incentivize a sex offender to achieve that which this defendant has achieved” … ; this quote applies in full measure here. Through his submission of multiple psychometric test results, expert opinions and expressions of familial support, defendant has demonstrated the presence of multiple mitigating factors not considered by the guidelines. The totality of the circumstances indicate defendant poses a low risk of reoffending. Thus, in the exercise of our independent discretion, to avoid imposing lifetime and very public restrictions of a risk level two offender upon this young defendant (see Correction Law §§ 168-h [1]-[2]; 168-i; 168-l [6] [a]-[b]; 168-q [1]), we grant his motion for a downward departure and classify him as a risk level one sex offender subject to the applicable restrictions, for the requisite 20-year period … . Essentially, where we depart from the dissent is in our willingness to more fully consider the degree of evidence of rehabilitation and the resulting diminished potential for future criminal conduct. People v Waterbury, 2024 NY Slip Op 04169, Third Dept 8-8-24

​Practice Point: Here defendant presented expert psychological testimony, the results of psychological tests and evidence of strong family support at the SORA risk-level-assessment hearing. On appeal the Third Department found the evidence should have been considered by the SORA court because it demonstrated a potential for rehabilitation.

 

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THE STATUTE REQUIRING DEFENDANT TO REGISTER AS A SEXUALLY VIOLENT OFFENDER BASED ON AN OUT-OF-STATE CONVICTION FOR A NONVIOLENT OFFENSE IS UNCONSTITUTIONAL AS APPLIED TO DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the statute which required designating defendant a sexually violent offender based upon an out-of-state conviction for a nonviolent offense was unconstitutional as applied to her:

In this proceeding under the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant appeals from an order insofar as it designated her a sexually violent offender. Defendant was previously convicted in North Carolina upon her guilty plea of sexual activity by a substitute parent under the theory of aiding and abetting, a felony offense (former NC Gen Stat § 14-27.7 [a]). The conviction required her to register as a sex offender in that state. After defendant moved to New York, the Board of Examiners of Sex Offenders (Board) determined that she was required to register as a sex offender in New York pursuant to Correction Law … .

… [T]he foreign registration clause of Correction Law § 168-a (3) (b) does not withstand constitutional scrutiny as applied to her. Initially, we agree with the People that, although a sexually violent offender designation affects a “liberty interest . . . [that] is substantial” … because it “imposes a stigma that broadly impacts a defendant’s life and ability to participate in society” … , “[t]he right not to have a misleading label attached to one’s serious crime is not fundamental in [the constitutional] sense” … . As a result, defendant’s “constitutional claims [are] subject to [*2]deferential rational basis review” … . That standard of review “is not a demanding” test, but rather “is the most relaxed and tolerant form of judicial scrutiny” … .

Here, defendant established that the People never disputed the nonviolent nature of the sex offense of which defendant was convicted in North Carolina and neither the Board nor the People requested that points be assessed under risk factor 1 for use of violence. Moreover, in support of their position that defendant be designated as a sexually violent offender, the People never argued that the sex offense was the statutory equivalent of a sexually violent offense in New York (see Correction Law § 168-a [3] [b]). In short, the sole reason put forward by the People for seeking the “sexually violent” designation was the operation of the challenged statute. People v Cromwell, 2024 NY Slip Op 03934, Fourth Dept 7-26-24

Practice Point: The Correction Law provision requiring a defendant to register as a sexually violent offender for an out-of-state conviction for a nonviolent offense is unconstitutional as applied.

 

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BECAUSE DEFENDANT’S 20-YEAR-OLD OUT-OF-STATE CONVICTION DID NOT INVOLVE A SEXUALLY VIOLENT OFFENSE, THE CORRECTION LAW WHICH REQUIRES THAT HE BE DESIGNATED A SEXUALLY VIOLENT OFFENDER IS UNCONSTITUTIONAL AS APPLIED TO HIM (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant should not have been designated a sexually violent offender based upon a 20-year-old out-of-state conviction of an offense which would not qualify as a sexually violent offense in New York:

There is no dispute that the crime of which defendant was convicted, sexual assault in violation of 18 Pa Cons Stat § 3124.1, does not include all of the essential elements of a sexually violent offense in New York enumerated in Correction Law § 168-a (3) (a), and therefore is not a sexually violent offense under the first disjunctive clause of Correction Law § 168-a (3) (b). Instead, after defendant moved to New York approximately 20 years after the sexual assault conviction was entered and the Board of Examiners of Sex Offenders determined that he was required to register as a sex offender in New York …, the People contended that County Court should designate him a sexually violent offender under the second disjunctive clause of Correction Law § 168-a (3) (b). That clause defines a sexually violent offense as including 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.” The court designated defendant a sexually violent offender under the foreign registration clause.

… [W]e agree with defendant that the foreign registration clause of Correction Law § 168-a (3) (b) is unconstitutional, as applied to him, under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. People v Zellefrow, 2024 NY Slip Op 03605, Fourth Dept 7-3-24

Practice Point: The Correction Law which requires a person convicted of a registrable offense in another state to be designated a sexually violent offender upon moving to New York is unconstitutional as applied to the defendant here, whose out-of-state conviction did not involve a sexually violent offense under New York law.​

 

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LEVEL ONE SEX OFFENDERS MUST REGISTER UNDER SORA FOR 20 YEARS; LOW RISK-LEVEL SEX OFFENDERS WHO WERE REGISTERED IN ANOTHER STATE AND WHO RELOCATE TO NEW YORK ARE NOT ENTITLED TO CREDIT FOR THE TIME THEY WERE REGISTERED OUT-OF-STATE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two dissenting opinions (three judges), determined sex offenders registered in other states who are designated level-one risks upon relocating to New York are not entitled to credit for the time they were registered in another state:

Generally, those convicted of sex offenses in other states must register under the Sex Offender Registration Act ([SORA] …) upon relocating to New York … . While the statute requires some sex offenders to register for life … , those in the lowest risk category register for a term of 20 years … . The issue here is whether the statute entitles sex offenders who are classified in that lowest risk category upon relocating to New York to credit for their time registered as sex offenders under the laws of other states. We hold that it does not … .

Defendant in each of these appeals was convicted in another state of an offense that required him to register as a sex offender under the laws of that state. Some years later, each defendant relocated to New York and was required to register as a level-one risk under SORA. Neither is designated a sexual predator, sexually violent offender, or predicate sex offender. During the risk level determination hearings under Correction Law § 168-k (2), each defendant requested that Supreme Court order him registered nunc pro tunc to the date when he registered as a sex offender in the state where he was convicted of his sex offense, in effect giving him credit for the time registered in the foreign jurisdiction against the 20-year registration period. * * *

We recognize that the statute, as written, may lead to unfair results in some circumstances. For example, an offender with a minimal risk of reoffense who has spent substantial time compliant with an effectively administered out-of-state registry scheme without having reoffended would seem to deserve credit for that time as a matter of policy. Moreover, the diversion of public resources and attention towards offenders such as these arguably undermines the state’s effort to protect the public against genuinely dangerous offenders. On the other hand, not all state registry schemes are necessarily created equal, for example, in terms of supervision and registration requirements, and there is no specific mechanism under SORA for a court to determine whether a foreign state’s administration of its registry is as exacting as New York’s or the extent to which a particular offender complied with his obligations under that state’s statute and remained free of reoffense. People v Corr, 2024 NY Slip Op 03379, CtApp 6-20-24

Practice Point: Low risk-level sex offenders who relocate to New York are not entitled to credit for the time they were registered out-of-state. They must remain registered in New York for twenty years.

 

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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.

 

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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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HERE THE PEOPLE’S FAILURE TO PROVIDE TEN-DAY’S NOTICE THEY WERE SEEKING A HIGHER SORA RISK LEVEL THAN THAT RECOMMENDED BY THE BOARD WARRANTED A REDUCTION FROM LEVEL THREE TO TWO; DEFENSE COUNSEL’S REPLY TO THE LATE NOTICE DID NOT WAIVE THE REQUIREMENT (FIRST DEPT).

The First Department, reducing defendant’s SORA risk level from three to two, determined (1) the defendant was not given the requisite 10-day notice of the prosecutor’s intent to seek a higher risk level than that recommended by the Board, and (2) defense counsel’s reply to the late notice by the prosecutor did not waive the 10-day notice requirement:

We agree with defendant that he was denied due process because the People did not provide written notice of its intent to seek a determination different than that recommended by the Board “at least ten days prior to the determination proceeding” (Correction Law § 168-n[3] …). The People sent defense counsel a letter stating their intent to seek a risk level three adjudication, different from the Board’s recommendation of risk level two, less than 10 days in advance of the hearing. … [T]he People indicated in their letter only that they were seeking additional point assessments and did not apprise counsel that they were also requesting an upward departure … . … [T]he People announced their intention to seek an upward departure for the first time at the court’s invitation during the SORA hearing.

Defendant’s right to timely notice was not waived by his counsel’s letter, in response to the People’s, that counsel was willing to go forward with the hearing if the prosecutor delivered to counsel by the next day the evidence that the People intended to use at the hearing. Nothing in the record indicates that the prosecutor complied with this condition. Moreover, because the People did not announce an intention to seek an upward departure, any waiver would not have embraced that request. People v Tookes, 2024 NY Slip Op 03095, First Dept 6-6-24

Practice Point: The People must provide defendant ten-day’s notice of their intent to seek a higher SORA risk level than that recommended by the Board.

Practice Point: The People should not wait until the SORA hearing to announce they are seeking an upward departure.

 

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17-YEAR-OLD’S ARE STATUTORILY EXCLUDED FROM THE CLASS OF VICTIMS UNDER PENAL LAW 263.11, TO WHICH DEFENDANT PLED GUILTY; RISK-LEVEL REDUCED FROM TWO TO ONE (FOURTH DEPT).

​The Fourth Department, reducing defendant’s SORA risk-level from two to one, determined the 17-year-old involved in the offense was statutorily excluded from the class of victims:

… [T]he court erred in assessing 20 points for the number of victims under risk factor 3 … . The court based its assessment on a determination that a 17-year-old was a victim of defendant’s conduct. However, 17-year-olds are statutorily excluded from the class of victims under Penal Law § 263.11, to which defendant pleaded guilty. When those points are removed, defendant has a total of 60 points, making him a presumptive level one risk. People v Cockrell, 2024 NY Slip Op 02439, Fourth Dept 5-3-24

Practice Point: 17-year-old’s are statutorily excluded from the class of victims under Penal Law 263.11.

 

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DOCCS MUST MAKE SOME EFFORT TO FIND COMMUNITY-BASED EMPLOYMENT, EDUCATIONAL OR TRAINING OPPORTUNITIES FOR SEX OFFENDERS HELD IN THE RESIDENTIAL TREATMENT FACILITY AT FISHKILL CORRECTIONAL FACILITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two partial dissents by three judges, reversing (modifying) the appellate division, determined the Department of Corrections and Community Supervision (DOCCS) must make some effort to find community-based employment, educational or training opportunities for sex offenders held in the residential treatment facility (RTF) at Fishkill Correctional Facility:

Plaintiffs are convicted sex offenders who were confined in the Fishkill RTF while on postrelease supervision (PRS). Since 2014, DOCCS has used the Fishkill RTF to confine convicted sex offenders past the maximum expiration dates of their carceral sentences in circumstances where the offenders are unable to find housing in compliance with the requirements of the Sexual Assault Reform Act (SARA), which bars them from living within 1,000 feet of a school … . * * *

We agree with plaintiffs that DOCCS cannot categorically refuse to attempt to secure community-based opportunities for RTF residents. Crucially, while DOCCS surely has discretion in operating its RTF programs, the record here demonstrates that DOCCS is exercising no discretion with respect to community-based opportunities. DOCCS instead offers only speculation that the opportunities would be difficult to secure for the types of offenders housed in that RTF. To be sure, the statute [Correction Law § 73 [1]] establishes no percentage or threshold number of RTF residents who must be allowed outside the facility to engage in community-based activities. But defendants incorrectly construe the permissive phrase, “may be allowed to go outside,” to empower DOCCS to bar all RTF residents categorically from accessing community-based opportunities without considering whether such opportunities are available or appropriate. A comprehensive reading of the statutory provisions cannot support such a construction. By reading the permissive phrase in isolation, defendants read the definitional provision out of the statute, eviscerate the character and purpose of the RTF, and undermine the legislative intent. Alcantara v Annucci, 2024 NY Slip Op 02224, CtApp 4-25-24

Practice Point: The Department of Corrections and Community Supervision cannot interpret the Correction Law such that the purpose of the statute (here finding community-based employment, educational or training opportunities for sex offenders) is thwarted.

 

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IN THIS MENTAL HYGIENE LAW ARTICLE 10 PROCEEDING TO DETERMINE WHETHER RESPONDENT SEX OFFENDER SUFFERED FROM A MENTAL ABNORMALITY WARRANTING CIVIL MANAGEMENT, THE JUDGE CONFLATED TWO DIFFERENT LEGAL STANDARDS, ERRONEOUSLY FOUND THAT A MENTAL ABNORMALITY CANNOT BE PROVEN BY A CONSTELLATION OF CONDITIONS, DISEASES AND DISORDERS, AND IMPROPERLY RELIED ON OUTSIDE RESEARCH (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, over an extensive dissenting opinion, reversing Supreme Court and ordering a new trial, determined several errors by the judge in this Mental Hygiene Law article 10 proceeding tainted the judge’s finding that the state had not proven respondent sex offender suffered from a mental abnormality and required civil management:

This article 10 proceeding arose out of respondent Richard V.’s 2002 conviction of rape in the first degree. In October 2001, respondent and an accomplice posed as plumbers to gain entry to the apartment of a female acquaintance. After the woman brought them inside, respondent subdued her with pepper spray, restrained her, repeatedly attacked her, threatened to kill her, and twice violently raped her.* * *

The sole issue at the bench trial was whether respondent suffers from a mental abnormality that “predisposes [him] to the commission of conduct constituting a sex offense” resulting in “having serious difficulty [] controlling such conduct” … . At the second stage of an article 10 proceeding — the dispositional phase — the standard is whether a respondent has “such an inability to control his behavior that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” …

There can be little dispute that Supreme Court conflated the applicable legal standards. * * *

… Supreme Court committed reversible error in finding that the State could not use a “constellation” of conditions, diseases, and disorders to establish that respondent has a mental abnormality. * * *

Supreme Court’s extensive usage of outside research blurred the lines between the roles of judge and counsel, depriving the parties of the opportunity to respond … . Matter of State of New York v Richard V., 2024 NY Slip Op 02158, First Dept 4-23-24

Practice Point: When a judge does outside research to inform the decision, the parties are deprived of the opportunity to respond.

 

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