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SCHOOL-GROUNDS RESTRICTION APPLIES ONLY TO OFFENDERS SERVING A SENTENCE FOR ONE OF THE OFFENSES ENUMERATED IN THE EXECUTIVE LAW AT THE TIME OF RELEASE, SINCE PETITIONER, WHO WAS A LEVEL THREE SEX OFFENDER, WAS SERVING A SENTENCE FOR BURGLARY AT THE TIME OF RELEASE, THE SCHOOL-GROUNDS RESTRICTION DID NOT APPLY TO HIM (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Aarons, disagreeing with the 4th Department, determined that the restriction in the Executive Law prohibiting a sex offender from living within 1000 feet of a school only applied if the sentence being served at the time of release on parole is for one of the offenses enumerated in the statute. Defendant had previously been convicted of a sex offense and had been adjudicated a level three sex offender. But the offense for which he was incarcerated at the time of his release (burglary) is not an enumerated offense:

… [T]he statute is unambiguous and interpret it in the manner advanced by him. In this regard, we read “such person” as plainly and unequivocally referring to “a person serving a sentence for an offense defined in [Penal Law articles 130, 135 or 263 or Penal Law § 255.25, § 255.26 or 255.27]” (Executive Law § 259-c [14]). We are unpersuaded by respondent’s contention that “such person” in Executive Law § 259-c (14) can be rationally read to refer only to “a person” or “a person serving a sentence” as stated in the beginning of the statute and without regard to that part of the statute specifying various offenses. Based on the foregoing, we find that the school-grounds restriction provided in Executive Law § 259-c (14) applies either to (1) an offender serving one of the enumerated offenses whose victim was under 18 years old, or (2) an offender serving one of the enumerated offenses who was designated a risk level three sex offender. Because petitioner was not serving a sentence for an offense delineated in Executive Law § 259-c (14), the statute does not apply to him. People v Superintendent, Woodbourne Corr. Facility, 2019 NY Slip Op 01267, Third Dept 2-21-19

 

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SORA COURT MAY HAVE OVERASSESSED THE RISK IN A STATUTORY RAPE CASE, MATTER REMITTED FOR PROPER APPLICATION OF THE CRITERIA ANNOUNCED BY THE COURT OF APPEALS IN PEOPLE V GILLOTTI (FIRST DEPT).

The First Department sent the matter back to the SORA court for further consideration of the request for a downward department where defendant was convicted of statutory rape:

In People v Gillotti (23 NY3d 841 [2014]), the Court of Appeals outlined a three-step process for determining whether to grant a defendant’s request for a downward departure. First, the hearing court is to determine whether alleged mitigating circumstances are “of a kind or degree not adequately taken into account by the guidelines”… . If so, the court applies a preponderance of the evidence standard (id. at 863) to determine whether the defendant has proven the existence of those circumstances … . Finally, if the first two steps are satisfied, the court must “exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants” a downward departure to avoid an overassessment of the defendant’s dangerousness and risk of sexual reoffense … .

While not entirely clear on this point, the decision of the hearing court in this case suggests that, in this case of statutory rape, the court considered itself bound, as a matter of law, to conclude that the various details of the offense urged as mitigating circumstances by defendant were adequately accounted for by the guidelines. Thus, the court appeared to consider itself unable to engage in the discretionary weighing prescribed in Gillotti’s third step. To the extent that the court acted based on this reasoning, it operated on an inaccurate premise that is contradicted by numerous cases that have granted downward departures in a similar context … , as well as the Guidelines themselves (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 9 [2006]).

“In cases of statutory rape, the Board has long recognized that strict application of the Guidelines may in some instances result in overassessment of the offender’s risk to public safety” … . Accordingly, the fact that in such a case the offender is not assessed any points for force or injury should not be the end of the discussion of whether to grant a downward departure. People v Soto, 2019 NY Slip Op 01184, First Dept 2-19-19

 

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NO SHOWING THAT POST TRAUMATIC STRESS DISORDER OR A TRAUMATIC BRAIN INJURY INCREASED THE RISK OF REOFFENSE, APPELLATE DIVISION EXERCISED ITS OWN DISCRETION AND REDUCED DEFENDANT’S RISK LEVEL FROM TWO TO ONE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that defendant should have been adjudicated a level one, not a level two risk:

Although defendant was diagnosed with PTSD [post traumatic stress disorder] and may have sustained a TBI traumatic brain injury], the record is devoid of evidence that any such mental impairment “is causally related to a[ ] risk of reoffense” … . …

Nor is the continuing nature of the crime sufficient to support the upward departure because, even if additional points were assessed for risk factor 4, i.e., continuing course of sexual misconduct, defendant’s total risk factor score would not result in defendant’s classification as a presumptive level two risk … . Further, there is no basis for an upward departure where, as here, the alleged aggravating factor is adequately taken into account by the risk assessment guidelines … . Finally, although we conclude that defendant’s actions in taking the victim across state lines constitute an aggravating factor that is, “as a matter of law, of a kind or to a degree not adequately taken into account by the [risk assessment] guidelines” … , we further conclude that the court improvidently exercised its discretion in granting an upward departure based on that factor under the circumstances of this case. We therefore substitute our own discretion … . People v Logsdon, 2019 NY Slip Op 00998, Fourth Dept 2-8-19

 

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INSUFFICIENT EVIDENCE DEFENDANT SEX OFFENDER WAIVED HIS PRESENCE AT THE SORA RISK ASSESSMENT HEARING, ISSUE CONSIDERED IN THE INTEREST OF JUSTICE, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, exercising its interest of justice appellate jurisdiction, determined the evidence that defendant waived his presence at the SORA risk assessment hearing was insufficient. A new hearing was ordered:

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 sole “evidence” that the defendant waived the right to be present was the statement by the court that it was informed off-the-record by the New York City Police Department Sex Offender Monitoring Unit that the defendant resided at an address in Manhattan and that notice of the hearing was sent to that address and not returned as undeliverable. There was no evidence, hearsay or otherwise, that the defendant expressed a desire to forgo his presence at the hearing … . The fact that defense counsel had “no evidence to indicate” that the defendant did not receive notice of the hearing was not sufficient to indicate a waiver. People v Barney, 2019 NY Slip Op 00153, Second Dept 1-9-19

 

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INSUFFICIENT EVIDENCE THAT DEFENDANT HAD A HISTORY OF DRUG AND ALCOHOL ABUSE, RISK ASSESSMENT REDUCED (FOURTH DEPT).

The Fourth Department, in this Sex Offender Registration Act (SORA) risk assessment proceeding, determined there was insufficient evidence that defendant had a history of alcohol and drug abuse:

We agree with defendant that the People failed to prove by the requisite clear and convincing evidence that he had a history of alcohol and drug abuse … .

The SORA Risk Assessment Guidelines and Commentary for risk factor 11 state in relevant part that “[a]lcohol and drug abuse are highly associated with sex offending . . . The guidelines reflect this fact by adding 15 points if an offender has a substance abuse history . . . It is not meant to include occasional social drinking. In instances where the offender abused drugs and/or alcohol in the distant past, but his more recent history is one of prolonged abstinence, the . . . court may choose to score zero points in this category” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]). At the SORA hearing, the People presented evidence that defendant drank one can of beer each month. We agree with defendant that such evidence was insufficient to warrant the assessment of points under risk factor 11 … . The People also presented evidence that defendant smoked marihuana in his teenage years and early twenties, but thereafter participated in a drug treatment program and, at the time of the presentence interview, had not smoked marihuana for four years. We agree with defendant that the People’s evidence established that his recent history of drug use was one of prolonged abstinence and was also insufficient to warrant the assessment of points under risk factor 11 … . People v Madonna, 2018 NY Slip Op 08789, Fourth Dept 12-21-18

 

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ALTHOUGH DEFENDANT WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, THERE WAS NO SEX-RELATED ELEMENT IN THE VIRGINIA OFFENSE, DEFENDANT NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a three-judge dissenting opinion, determined that defendant need not register as a sex offender in New York based upon a murder conviction in Virginia, even though Virginia law required such registration. There was no sex-related element in the offense. Defendant, in 1989, at age 19, murdered his half-sister because she was harassing him. At the time, he said he was “hearing voices telling him to kill people:”

Blind deference to another jurisdiction’s registry without asking, fundamentally, whether that jurisdiction considers its own registrant a sex offender would contravene the plain and limiting language of section 168-a (2) (d) (ii) and could subject an entire class of defendants with no relation to SORA’s purpose to its strict requirements. * * *

In concluding that SORA does not require defendant’s registration because Virginia does not consider defendant a sex offender, we reserve weightier issues of a foreign registry’s potential conflict with New York’s due process guarantees or public policy for another day. …

… Our holding today merely requires a court or the Board to determine—not based on “intuition,” but rather on the offense of conviction and its relation to the foreign registry statute—whether the out-of-state defendant is considered a sex offender before requiring registration under SORA. …

Defendant’s out-of-state felony conviction did not require him to “register as a sex offender” in Virginia under Correction Law § 168-a (2) (d) (ii) and, thus, he should not be required to register as a sex offender in New York. People v Diaz, 2018 NY Slip Op 08424, CtApp 12-11-18

 

 

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STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined that the Executive Law provision which prohibits level three sex offenders from entering school grounds applies to all level three sex offenders, not only those who are incarcerated for one of the enumerated sex crimes at the time they are released on parole. Petitioner was convicted of rape and adjudicated a level three offender in 1994. Subsequently petition was convicted of and incarcerated for robbery, which is not one of the enumerated crimes. The court noted that it was not, under administrative law principles, required to defer to the Board of Parole’s ruling, but nevertheless it agreed with the ruling and Supreme Court’s denial of the petition. The Fourth Department found the statute is ambiguous applying statutory-construction rules and then turned to the legislative history of the statute (Executive Law 259-c (14)):

When Executive Law § 259-c (14) was first enacted, the school grounds mandatory condition applied only to persons serving a sentence for an enumerated offense against a minor … . In 2005, the legislature amended the statute to add the reference to level three sex offenders … . The sponsors’ memorandum defined the purpose of that amendment: “To prohibit sex offenders placed on conditional release or parole from entering upon school grounds or other facilities where the individual has been designated as a level three sex offender” … . As justification, the sponsors offered: “There is a need to prohibit those sex offenders who are determined to pose the most risk to children from entering upon school grounds or other areas where children are cared for” … . …

Based on our review of the legislative history relating to the enactment of the relevant amendment to Executive Law § 259-c (14), we conclude that there existed a consensus among governmental and nongovernmental organizations that, for good or ill, the amended language was intended to extend the school grounds mandatory condition to all persons conditionally released or released to parole who have been designated level three sex offender. People ex rel. Garcia v Annucci, 2018 NY Slip Op 07868, Fourth Dept 11-16-18 

CRIMINAL LAW (STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA)  (STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))/PAROLE (SEX OFFENDERS, STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))/SCHOOL GROUNDS (SEX OFFENDERS, PAROLE, STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))EXECUTIVE LAW (SEX OFFENDERS, SCHOOL GROUNDS, PAROLE, STATUTE PROHIBITING LEVEL THREE SEX OFFENDERS FROM ENTERING SCHOOL GROUNDS APPLIES TO ALL LEVEL THREE OFFENDERS, NOT ONLY THOSE INCARCERATED FOR AN ENUMERATED SEX CRIME AT THE TIME OF THEIR RELEASE ON PAROLE, HERE THE PETITIONER HAD PREVIOUSLY BEEN ADJUDICATED A LEVEL THREE SEX OFFENDER BUT WAS BEING PAROLED AFTER INCARCERATION FOR A ROBBERY CONVICTION (FOURTH DEPT))

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DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT).

The Second Department determined there defendant was not given the opportunity to be heard on whether he should be designated a sexual predator and deleted the designation:

… [T]he Supreme Court erred in, sua sponte, designating the defendant a sexual predator. Neither the Board of Examiners of Sex Offenders nor the People had recommended such a designation, and the defendant was never afforded an opportunity to be heard on the issue of whether he should be so designated (see Correction Law § 168-n[3]…). Accordingly, we modify the order so as to delete the provision thereof designating the defendant a sexual predator. People v Medina, 2018 NY Slip Op 07162, Second Dept 10-24-18

CRIMINAL LAW (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))/SEXUAL PREDATOR (DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT))

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PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined the People’s request for an upward departure in this SORA risk assessment proceeding should not have been granted:

An upward departure is permitted only if the court concludes, upon clear and convincing evidence, “that there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines” … . In determining whether an upward departure is permissible and, if permissible, appropriate, a SORA court must engage in a three-step inquiry. First, the court must determine whether the People have articulated, as a matter of law, a legitimate aggravating factor. Next, the court must determine whether the People have established, by clear and convincing evidence, the facts supporting the presence of that factor in the case before it. Upon the People’s satisfaction of these two requirements, an upward departure becomes discretionary. If, upon examining all of the circumstances relevant to the offender’s risk of reoffense and danger to the community, the court concludes that the presumptive risk level would result in an underassessment of the risk or danger of reoffense, it may upwardly depart … . If, however, the People do not satisfy the first two requirements, the court does not have the discretion to depart from the presumptive risk level… .

In this case, the People failed at the hearing to identify “an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines” … . Specifically, the defendant’s abuse of trust within a family relationship is already adequately accounted for by the Guidelines … . People v Mota, 2018 NY Slip Op 06950, Second Dept 10-18-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA) PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT).

The Fourth Department determined there was insufficient evidence the defendant and the 16-year-old victim and the 24-year-old were strangers. The risk assessment was therefore reduced by 20 points:

We agree with defendant that Supreme Court erred in assessing him 20 points under risk factor 7, which applies when, insofar as relevant here, the offender's conduct ” was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization' “… . The 24-year-old defendant and the 16-year-old victim met while working at a local Red Cross; the two exchanged contact information and, months later, communicated through social media and by telephone before any sexual contact occurred. Under these circumstances, the People failed to establish by clear and convincing evidence that defendant and the victim were strangers at the time of the crime … . Moreover, the People “presented no evidence that defendant . . . targeted the victim for the primary purpose of victimizing her” … .

Without the 20 points assessed under risk factor 7, defendant is a presumptive level one sex offender … . People v Perez, 2018 NY Slip Op 06666, Fourth Dept 10-5-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (INSUFFICIENT EVIDENCE DEFENDANT AND VICTIM WERE STRANGERS, RISK ASSESSMENT REDUCED BY 20 POINTS MAKING DEFENDANT A PRESUMPTIVE LEVEL ONE SEX OFFENDER (FOURTH DEPT))

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