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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

 

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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

 

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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

 

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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

 

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ALTHOUGH THE EVIDENCE SUPPORTED A LEVEL TWO RISK LEVEL CLASSIFICATION, COUNTY COURT DID NOT ADDRESS DEFENDANT’S REQUEST FOR A DOWNWARD DEPARTURE; REVERSED AND REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined the level two risk level classification was supported by the evidence, but the matter must be reversed and remitted because County Court did not address defendant’s request for a downward departure:

Defendant … contends that County Court abused its discretion in denying his request for a downward departure to a risk level one classification. The record discloses that defendant made such request early in the hearing, in the event that the court placed defendant in the risk level two classification, and submitted a psychological treatment summary in support thereof. Although the summary was received into evidence and reviewed by the court, the court did not address defendant’s request but proceeded to consider the substantive risk factors, ultimately concluding that defendant should be placed in the risk level two classification. Significantly, as the record does not contain any findings or conclusions with respect to defendant’s request, we are unable to ascertain the court’s reasoning for implicitly denying it. 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 Conrad, 2021 NY Slip Op 02194, Third Dept 4-8-21

 

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THE SEXUAL ASSAULT REFORM ACT (SARA), WHICH REQUIRES THAT CERTAIN SEX OFFENDERS RESIDE IN SARA-COMPLIANT HOUSING (AWAY FROM SCHOOL GROUNDS) UPON RELEASE FROM PRISON DOES NOT APPLY TO SEX OFFENDERS WHO HAVE BEEN ADJUDICATED YOUTHFUL OFFENDERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, in a full-fledged opinion by Justice Bannister, determined the conditions imposed by the Sexual Assault Reform Act (SARA) requiring certain sex offenders live in SARA-compliant housing upon release (away from school grounds) does not apply to those sex offenders who are adjudicated youthful offenders:

A “sex offender,” as defined in the Correction Law, “includes any person who is convicted of any of the [enumerated offenses]” … . A “sex offense” is defined as “a conviction of or a conviction of an attempt to commit [an enumerated crime]” … Additionally, the school grounds mandatory condition as set forth in Penal Law § 65.10 (4-a) (a) expressly applies only to those persons convicted of the enumerated offenses.

When a sentencing court adjudicates a defendant a youthful offender, however, the conviction is “deemed vacated and replaced by a youthful offender finding” … . CPL 720.35 (1) states that a youthful offender adjudication “is not a judgment of conviction for a crime or any other offense,” which is in keeping with the “legislative desire not to stigmatize youths [adjudicated youthful offenders] . . . with criminal records triggered by hasty or thoughtless acts” … . Thus, by definition, a youthful offender is not a convicted sex offender and does not fall within the category of persons intended to be restricted under SARA. People ex rel. Suarez v Superintendent, Livingston Corr. Facility, 2021 NY Slip Op 00705, Fourth Dept 2-5-21

 

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THE JUDGE DID NOT MAKE THE REQUIRED INQUIRY TO ENSURE DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL FOR THE SORA HEARING WAS KNOWING, INTELLIGENT AND VOLUNTARY; THE NOTICE OF THE SORA HEARING PROVIDED TO DEFENDANT WAS INADEQUATE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge did not conduct the required inquiry to ensure defendant’s waiver of his right to counsel for the SORA hearing was knowing, intelligent and voluntary. The Fourth Department also noted that notice of the SORA hearing provided to the defendant was inadequate:

…[D]efendant’s purported waiver of the right to counsel is invalid. “It is well settled that defendants have a statutory right to counsel in SORA proceedings” … . In order for a defendant to validly waive his right to counsel, “the court must undertake a ‘searching inquiry . . . aimed at [e]nsuring that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel’ ” … . Such an inquiry ensures that the defendant’s waiver is ” ‘made competently, intelligently and voluntarily’ ” … .

Here, County Court failed to conduct the necessary searching inquiry and, instead, relied upon defendant’s notation on the form notice he received about his SORA classification proceeding that he did “not wish to have counsel appointed.” …

… [T]he form notice provided to [defendant] about his SORA classification contained numerous deficiencies. The notice did not fully describe the SORA hearing or the consequences that would follow if defendant failed to appear … . It also appears that the court failed to provide defendant with a “copy of the recommendation received from the [Board of Examiners of Sex Offenders] and any statement of the reasons for the recommendation” … . In providing the requisite notice to defendants pursuant to section 168-n (3), courts should be tracking the language used in that statute instead of giving a shortened summary. People v Huntley, 2021 NY Slip Op 00688, Fourth Dept 2-5-21

 

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UPWARD DEPARTURE SUPPORTED BY EVIDENCE DEFENDANT COMMITTED RAPE TO TAKE REVENGE UPON SOMEONE OTHER THAN THE VICTIM; THE FACT DEFENDANT HAD BEEN DEPORTED DID NOT RENDER THE APPEAL MOOT (CT APP).

The Court of Appeals, in a brief memorandum decision, upheld the Appellate Division’s finding that the upward departure was justified because it was based on a risk factor not addressed the Sex Offender Registration Act (SORA) Guidelines. The court noted that the fact defendant had been deported did not render the appeal moot:

Under the circumstances presented here, we reject the People’s argument that defendant’s appeal is rendered moot by his deportation … . On the merits, we conclude that it was not an abuse of discretion for the Appellate Division to sustain the upward departure based on the People’s proof that defendant raped the victim in order to take revenge upon someone other than the victim—a risk factor not adequately captured by the Guidelines. People v Rosario, 2020 NY Slip Op 07688, CtApp 12-22-20

 

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THE SEXUAL INTERCOURSE WAS DEEMED NONCONSENSUAL SOLELY BECAUSE THE VICTIM WAS 14; THE DEFENDANT WAS 27; DEFENDANT WAS NOT ENTITLED TO A DOWNWARD DEPARTURE TO RISK LEVEL ONE; THERE WAS A SUBSTANTIVE DISSENT (FIRST DEPT).

The First Department, over a dissent, determined defendant was not entitled to a downward risk level departure from level two to level one. The defendant was 27 when he had sexual intercourse with the fourteen-year-old victim. The majority argued the age difference precluded a departure:

The record shows that this 27 year-old defendant engaged in nonconsensual sexual intercourse with the victim, who was 14 years old, the only relevant crime considered by the SORA court regarding his risk level designation. * * *

While courts have recognized that sexual conduct that was nonconsensual solely by virtue of age may result in an over-assessment in risk level designation, those cases did not involve a defendant who was nearly twice as old as the victim, as in this case … . People v Romulus, 2020 NY Slip Op 07512, First Dept 12-15-20

 

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

The First Department, reversing Supreme Court, determined defendant was entitled to a downward departure reducing his risk level from two to one. Defendant was convicted of possession of child pornography. The Court of Appeals has warned that over assessment of the risk should be avoided in child pornography cases:

… A preponderance of the evidence established that scoring under factors three and seven overassessed the risk posed by defendant, and that he should receive a downward departure (see Gillotti, 23 NY3d at 863-64). As the transcript of the federal plea proceeding makes clear, the federal prosecutor characterized defendant’s case as being on the very low end of the child pornography possession spectrum and did not contest a nonincarceratory disposition notwithstanding that the federal guidelines recommended a sentence of 33 to 41 months. The federal district court provided a long explanation on the record of why defendant was deserving of a nonincarceratory disposition, including his lifetime of hard work, his dedication to family, the many character letters provided, and the limited time period in which defendant was actually viewing child pornography. The Probation Department also recommended a nonincarceratory disposition in its presentencing report. An independent psychological evaluation of defendant found no cognitive impairment or compulsion that would suggest that defendant was likely to reoffend. In sum, this is the kind of case that Gillotti envisioned warranting a downward departure in order to avoid overassessing risk by rote application of factors three and seven. People v Gonzalez, 2020 NY Slip Op 07468, First Dept 12-10-20

 

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