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20 POINTS SHOULD NOT HAVE BEEN ASSESSED UNDER RISK FACTOR 7 (RELATIONSHIP WITH THE VICTIM) BECAUSE THE VICTIM WAS NOT A STRANGER; ALTHOUGH SUBTRACTING 20 POINTS WOULD RESULT IN A LEVEL TWO SEX OFFENDER CLASSIFICATION, THE MATTER WAS SENT BACK BECAUSE THE PEOPLE INDICATED IF DEFENDANT WAS NOT DESIGNATED A LEVEL THREE OFFENDER THEY WOULD SEEK AN UPWARD DEPARTURE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined 20 points should not have been assessed under risk factor 7 (relationship with the victim) because the victim and defendant were not strangers. The People conceded there was a familial relationship:

Supreme Court improperly assessed 20 points under risk factor 7 (relationship with victim), since the People failed to establish by clear and convincing evidence that the defendant and the victim were strangers to each other … . To the contrary, the People conceded that the defendant and the victim had a familial relation, which is “specifically excluded by the Commentary and by the plain language of the Guidelines” with respect to risk factor 7 … .

Thus, 20 points must be deducted from the total risk assessment of 120 points, which places the defendant’s point score within the range of a level two sexually violent offender. Nevertheless, since the record of the SORA hearing reflects that the People would have sought an upward departure had the Supreme Court not designated the defendant a level three sexually violent offender, we remit the matter … to determine whether an upward departure is warranted and for a new determination of the defendant’s risk level … .  People v Perez, 2023 NY Slip Op 01108, Second Dept 3-1-23

Practice Point: Defendant should not have been assessed 20 points under risk factor 7 because the victim was not a stranger. Subtracting 20 points designated defendant a level two sex offender. Because the People indicated they would seek an upward departure if defendant was not designated a level three offender, the matter was remitted.

 

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DEFENDANT WAS NOT GIVEN THE REQUIRED 20-DAY NOTICE OF THE SORA RISK LEVEL HEARING, A VIOLATION OF DUE PROCESS; ALTHOUGH DEFENDANT DID NOT APPEAR AT THE HEARING, HE CAN APPEAL THE UPWARD DEPARTURE TO LEVEL THREE (THIRD DEPT).

The Third Department, reversing County Court, determined petitioner could appeal the 2006 level three sex offender risk level classification, despite his failure to appear at the hearing, because he was not given 20-days notice prior to the hearing:

Although the hearing took place on June 25, 2003, defendant was only advised of it in a letter dated June 11, 2003.Accordingly, defendant’s due process rights were violated given that he was not afforded the minimum 20-day notice as required by statute … . The People respond that defendant explained in a letter sent after the June 2003 hearing that he chose not to attend that hearing because he did not think he would be classified at risk level three. This letter, however, postdated the hearing and any explanation made therein does not amount to a waiver of the right to appear at the hearing. Furthermore, defendant’s posthearing explanation does not obviate the notice requirements that defendant must be statutorily given prior to the hearing. People v Lockrow, 2023 NY Slip Op 01030, Third Dept 2-23-23

Practice Point: Here defendant was not given the required 20-day notice of the upcoming SORA risk level hearing, which violated his due process rights. He therefore could appeal the upward departure to level three.

 

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THE CORRECTION LAW REQUIRING A SEX OFFENDER TO VERIFY HIS OR HER ADDRESS EVERY NINETY DAYS IS VOID FOR VAGUENESS AS APPLIED TO HOMELESS SEX OFFENDERS (FIRST DEPT). ​

The First Department, vacating defendant’s guilty pleas, in a full-fledged opinion by Justice Renwick, determined the Correction-Law requirement that a sex offender verify his or her address every 90 days is void for vagueness as applied to homeless sex offenders:

… [T]he question is whether the reporting requirements of Correction Law § 168-f(3) provided sufficient notice to defendant of what conduct was mandated by the statute when he left his previous residence address, a homeless shelter, but possessed no new permanent or temporary residence with an address. According to its plain language, Correction Law § 168-f(3) mandates that offenders register a change of residence by providing a specific new “address.” The statute, however, contains no objective standard or guidelines that would put homeless sex offenders without an address on notice of what conduct is required of them. Under these circumstances, such transient offenders can only guess at what is meant by the requirement that they register their new “address.” Similarly, the change of address reporting requirement fails to provide even minimal guidelines for the registering authorities in these regards, thus encouraging arbitrary enforcement. People v Allen, 2023 NY Slip Op 00496, First Dept 2-2-23

Practice Point: The Correction Law requiring a sex offender to verify his or her address every ninety days is void for vagueness as applied to homeless sex offenders.

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO LEVEL ONE; THE PRIOR RAPE (THE JUSTIFICATION FOR COUNTY COURT’S LEVEL THREE DESIGNATION) STEMMED FROM AN ONGOING RELATIONSHIP WITH THE VICTIM WHO WAS UNABLE TO CONSENT SOLELY BECAUSE OF HER AGE (SECOND DEPT).

The Second Department, reversing County Court, determined defendant was entitled to a downward departure to a level one sex offender designation. County Court had designated defendant a lever three offender because of a prior rape-third conviction. The rape-third conviction was based solely on the victim’s inability to consent due to her age. The defendant and the victim had been in a long-term relationship:

… [T]he unusual circumstances established by the defendant … are not accounted for by the Guidelines and tend to demonstrate a lower likelihood of reoffense and danger to the community. With respect to the first felony conviction serving as a predicate for the override, rape in the third degree, the People acknowledged that the victim’s lack of consent was solely by reason of inability to consent because of her age. Further, the record reflects that conduct underlying this crime was an ongoing relationship between the defendant and the victim. During this relationship, a video depicting sexual conduct between the defendant and the victim was taken. This video, depicting the same conduct for which the defendant was convicted of rape in the third degree and designated a level one sex offender, was discovered by a probation officer approximately a year later, and served as the basis for the defendant’s second sex-related felony conviction, possessing a sexual performance by a child. People v Hernandez, 2023 NY Slip Op 00451, Second Dept 2-1-23

Practice Point: Here defendant was entitled to a downward departure to a level one sex offender designation. The rape which County Court relied on for a level three designation stemmed from an ongoing relationship with the victim who was unable to consent solely because of her age.

 

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IF A DEFENDANT IS CONVICTED OF A FELONY IN A FOREIGN JURISDICTION WHICH REQUIRES THE DEFENDANT TO REGISTER AS A SEX OFFENDER, THE DEFENDANT WILL BE DESIGNATED A SEXUALLY VIOLENT OFFENDER IN NEW YORK EVEN IF THE FOREIGN FELONY DID NOT INVOLVE VIOLENCE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a dissent, determined a defendant who has been convicted in a foreign jurisdiction of a felony for which the defendant was required to register as a sex offender must be designated a sexually violent offender in New York, even if the foreign offense did not involve violence:

The statutory language is clear and unambiguous: “a felony in any other jurisdiction for which the offender is required to register as a sex offender” therein is, under subdivision (3), a “sexually violent offense” … . “As a general rule, unambiguous language of a statute is alone determinative” … . * * *

Defendant—and the many learned judges, lawyers, and legal scholars—may well be correct that subdivision (3) (b)’s foreign jurisdiction clause contains a legislative drafting error, but that does not give the courts license to ignore it. Courts must not “legislate under the guise of interpretation” … . If we were to take it upon ourselves to delete subdivision (3) (b)’s foreign registration clause as the Committee suggested the legislature should do, we would be impinging on the province of the legislature … . Thus, we are constrained to construe subdivision (3) (b)’s foreign registration clause according to its plain language. If the legislature did err, we unequivocally call upon it to remedy that error … . People v Talluto, 2022 NY Slip Op 07025, CtApp 12-13-22

Practice Point: If a defendant has been convicted of a felony in another state which requires the defendant to register as a sex offender in that state, the defendant will be designated a sexually violent offender in New York, even if the out-of-state conviction did not involve violence.

 

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DEFENDANT IN THIS SORA RISK-ASSESSMENT PROCEEDING REQUESTED A DOWNWARD DEPARTURE WHICH WAS NOT ADDRESSED BY COUNTY COURT; THE ORDER WAS REVERSED AND THE MATTER SENT BACK FOR THE RELEVANT FINDINGS OF FACT AND CONCLUSIONS OF LAW (THIRD DEPT). ​

The Third Department, reversing County Court, determined defendant’s request for a downward departure in the SORA risk-assessment proceeding was not addressed by the court. The matter was sent back for the relevant findings of fact and conclusions of law:

County Court failed to address his request for a downward departure. We agree and, inasmuch as County Court did not set forth on the record any findings or conclusions on the request, we are unable to assess the court’s reasoning for the implicit denial thereof. “Consequently, we reverse and remit so that County Court may determine whether or not to order a departure from the presumptive risk level indicated by the offender’s guidelines factor score and to set forth its findings of fact and conclusions of law as required” … . People v Howland, 2022 NY Slip Op 06967, Third Dept 12-8-22

Practice Point: In a SORA risk-assessment proceeding, if the defendant requests a downward departure, the court must address the request and make the relevant findings of fact and conclusions of law.

 

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THE SUPERIOR COURT INFORMATION (SCI) DID NOT CHARGE DEFENDANT WITH CREATING AND FAILING TO REGISTER AN INTERNET IDENTIFIER, WHICH IS A VIOLATION OF THE CORRECTION LAW; INSTEAD, THE SCI CHARGED DEFENDANT WITH FAILURE TO REGISTER A FACEBOOK ACCOUNT, WHICH DOES NOT VIOLATE THE CORRECTION LAW (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the superior court information (SCI) determined that the SCI did not charge defendant with an violation of Correction Law section 168-a (18). The statute requires a sex offender to register the creation of an “Internet identifier.” But the SCI charged defendant with creating a Facebook account, which is not prohibited:

… [T]he SCI did not charge defendant with failing to register or report a change in an Internet identifier; instead, defendant was solely charged with failing to report a change in Internet status in violation of Correction Law § 168-f (4). Even assuming, without deciding, that the generalized language employed — failing to report a change in Internet status — coupled with the statutory reference otherwise would be sufficient to allege the material elements of the crime charged … , such reference was effectively negated “by the inclusion of conduct that [did] not constitute the crime charged” … — namely, “establishing a Facebook account.”

The governing statutes were written, and have been interpreted, narrowly. It has been clearly established “that the existence of a Facebook account — as opposed to the Internet identifiers a sex offender may use to access Facebook or interact with other users on Facebook — need not be disclosed to DCJS [Division of Criminal Justice Services] pursuant to Correction Law § 168-f (4)” … . Hence, the mere fact that defendant established a Facebook account was not an occurrence that defendant was required to report to DCJS, and his failure to do so did not constitute a violation of Correction Law § 168-f (4) … . * * *

… [T]he People did not charge defendant with failing to register an Internet identifier; they charged him with failing to report a change in Internet status, i.e., “establishing a Facebook account.” Stated differently, instead of “correctly alleg[ing] that the omission constituting the offense was [defendant’s] failure to register an Internet identifier used by him to access and identify himself on the Facebook account that he created and maintained, [the SCI] improperly premise[d] the charge on his failure to register the Facebook account itself” … . People v Ferretti, 2022 NY Slip Op 06030, Third Dept 10-27-22

Practice Point: Here the superior court information (SCI) did not charge defendant with an offense. If the SCI had charged defendant with failing to register an Internet identifier, the SCI would have charged an offense. Bu the SCI only charged defendant with failing to register a Facebook account, which is not an offense.

 

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EVEN THOUGH DEFENDANT WAIVED HIS RIGHT TO BE PRESENT AT THE SORA RISK-LEVEL ASSESSMENT PROCEEDING, HE DID NOT WAIVE HIS RIGHT TO EFFECTIVE COUNSEL; COUNSEL DID NOT COMMUNICATE WITH DEFENDANT AND DID NOT PRESENT A DEFENSE; ORDER REVERSED (THIRD DEPT).

The Third Department, reversing County Court, determined that, although defendant waived his right to be present at the SORA risk-assessment proceeding, he did not waive his right to effective assistance of counsel. Counsel did not communicate with the defendant and did not present a defense at the hearing:

“SORA defendants have the right to the effective assistance of counsel, pursuant to the Due Process Clauses contained in the 14th Amendment of the US Constitution and article I, § 6 of the NY Constitution, because the statutory right to counsel in such proceedings … would otherwise be rendered meaningless, and because SORA determinations affect a defendant’s liberty interest” … . Moreover, “[a] fundamental aspect of the attorney-client relationship is communication” and “we have noted that an attorney’s responsibility in the representation of any client requires consulting with and counseling the client” … . Defendant waived his right to be present at the hearing but did not waive his right to challenge the Board’s risk assessment and the People’s proof … . During the hearing, counsel admitted that he lacked “the benefit of [defendant’s] input” in proceeding with the matter and County Court acknowledged that counsel was at a “disadvantage” because he had not had a chance to speak with defendant. The record further reflects that counsel failed to present a defense or raise any objections and did not require the People to present any proof at the hearing. People v Moore, 2022 NY Slip Op 05242, Third Dept 9-22-22

Practice Point: Even where a defendant waives his right to appear at a SORA risk-assessment proceeding, he is entitled to effective assistance of counsel. Counsel, to be effective, must communicate with the defendant and present a defense.

 

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HERE DEFENDANT, WHO PLED GUILTY TO BURGLARY AS A SEXUALLY MOTIVATED FELONY, ATTEMPTED TO CHALLENGE HIS CERTIFICATION AS A SEX OFFENDER, PRONOUNCED AT SENTENCING, IN THE SORA RISK-LEVEL ASSESSMENT PROCEEDING; THE SEX OFFENDER CERTIFICATION WAS DEEMED TO BE PART OF THE JUDGMENT OF CONVICTION WHICH CAN ONLY BE CHALLENGED ON DIRECT APPEAL (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, determined that the defendant could not challenge his certification as a sex offender at the SORA risk-level-assessment proceeding. The sex-offender certification is part of the judgment of conviction which must be challenged on direct appeal. Here the defendant pled guilty to burglary as a sexually motivated felony and was designated a sex offender at sentencing.

… [W]e take this opportunity to pronounce that where, as here, a defendant challenges certification on the ground that the underlying New York conviction is for an offense which does not require registration under SORA, the issue is one which is properly raised on a direct appeal from the judgment of conviction, not on an appeal from an order designating his or her sex offender risk level…. . People v Matos, 2022 NY Slip Op 04984, Second Dept 8-17-22

Practice Point: Here the defendant was certified as a sex offender at sentencing for burglary as a sexually motivated felony. He attempted to challenge the certification at the SORA risk-level-assessment proceeding. The Second Department, like the First Department, held the sex offender certification was part of the judgment of conviction and can only be challenged by direct appeal.

 

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WHERE DEFENDANT ASSERTED HIS INNOCENCE AT TRIAL, HAS A PENDING APPEAL AND ASSERTS HIS RIGHT AGAINST SELF-INCRIMINATION IN THE SORA PROCEEDING, THE SORA COURT SHOULD NOT ASSESS POINTS UNDER RISK FACTOR 12 FOR FAILURE TO TAKE RESPONSIBILITY FOR THE OFFENSE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt, reversing the SORA court, in a matter of first impression, determined that where defendant asserted his innocence at trial, has a pending appeal, and has asserted his right to avoid self-incrimination, he should not be assessed points under risk factor 12 for failing to take responsibility for the relevant offense:

… [W]e conclude that a defendant who has invoked his Fifth Amendment right against self-incrimination and has a direct appeal pending should not be assessed points under risk factor 12. Considering this conclusion, and in view of defendant’s consistent refusal to incriminate himself and the pending status of his direct appeal, the assessment of 10 points under this factor amounts to a violation of defendant’s Fifth Amendment rights. * * *

… [D]efendant was forced to choose between, on the one hand, exercising his Fifth Amendment right against self-incrimination and being assessed points under risk factor 12, and, on the other, admitting responsibility for the acts that led to his conviction after so far maintaining his innocence and risking that those admissions would be used against him in a potential retrial or form the basis of a perjury charge. Ultimately, the penalty imposed on defendant when presented with this choice is that he was assessed 10 points under risk factor 12 and adjudicated a risk level two sex offender.

The difference between a level one and level two sex offender adjudication is substantial and illustrative of why the penalty is so great as to compel self-incrimination. If defendant were classified as a level one sex offender, he would be required to register annually for a period of 20 years from the date of initial registration (see Correction Law § 168-h), but his personal information would not be listed in a publicly available database. However, as a level two sex offender, defendant would be required to register annually for life (see Correction Law § 168-h), and his photograph, address, place of employment, physical description, age, and distinctive markings would be included in a public database (see Correction Law § 168-q). People v Krull. 2022 NY Slip Op 04783, First Dept 8-2-22

Practice Point: Here defendant asserted his innocence at trial, had a pending appeal and asserted his right against self-incrimination in the SORA proceedings. The SORA court should not have assessed points under risk factor 12 for failure to take responsibility for the offense.

 

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