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DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, PETITION PROPERLY DENIED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, considering a question of first impression, determined a defendant can appeal, as of right, the denial of a petition to modify a Sex Offender Registration Act (SORA) risk classification. The Second Department further held that the petition was properly denied, in large part because defendant, who was 71 years old and in poor health, did not participate in any sex offender treatment programs and did not accept responsibility for his sex offenses:

… [N]othing in the language of Correction Law § 168-o(2) precludes this Court’s exercise of its broad authority and jurisdiction to entertain and decide the instant appeal. In the context of SORA, we have long recognized the significant impact upon the defendant’s liberty interest. Furthermore, we are cognizant of the ongoing responsibility and crucial importance in maintaining a balance between the procedural safeguards afforded to the defendant and the societal interests involved in protecting “the public from sex offenders” … . … [W]e hold that a sex offender may appeal from an order denying a petition for a downward modification of his risk level. People v Charles, 2018 NY Slip Op 03864, Second Dept 5-30-18

​CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, IN THIS CASE THE PETITION WAS PROPERLY DENIED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (APPEALS, DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, IN THIS CASE THE PETITION WAS PROPERLY DENIED (SECOND DEPT))/APPEALS (CRIMINAL LAW, SEX OFFENDER REGISTRATION ACT (SORA), APPEALS, DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, IN THIS CASE THE PETITION WAS PROPERLY DENIED (SECOND DEPT))

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SCHIZOPHRENIA DIAGNOSIS DID NOT JUSTIFY AN UPWARD DEPARTURE IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT PROCEEDING (FOURTH DEPT).

The Fourth Department determined County Court should not have granted the People’s request for an upward departure in this Sex Offender Registration Act (SORA) risk assessment proceeding based upon a schizophrenia diagnosis:

Although the risk assessment instrument prepared by the Board of Examiners of Sex Offenders classified defendant as a presumptive level two risk, County Court granted the People’s request for an upward departure to a level three risk based on defendant’s alleged diagnosis of schizophrenia. That was error. Even if defendant in fact suffers from schizophrenia, “the record is devoid of evidence that the alleged mental illness is causally related to any risk of reoffense”… . Contrary to the People’s contention, the fact that defendant exhibits many symptoms of schizophrenia does not supply the necessary clear and convincing evidence that the disorder is causally related to an increased risk of future sex offending … . People v Robinson, 2018 NY Slip Op 02986, Fourth Dept 4-27-18

​CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), SCHIZOPHRENIA DIAGNOSIS DID NOT JUSTIFY AN UPWARD DEPARTURE IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT PROCEEDING (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (SCHIZOPHRENIA DIAGNOSIS DID NOT JUSTIFY AN UPWARD DEPARTURE IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT PROCEEDING (FOURTH DEPT))/SCHIZOPHRENIA (SEX OFFENDER REGISTRATION ACT (SORA), SCHIZOPHRENIA DIAGNOSIS DID NOT JUSTIFY AN UPWARD DEPARTURE IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT PROCEEDING (FOURTH DEPT))

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ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP).

The Court of Appeals, over an extensive dissenting opinion by Judge Rivera, affirmed the SORA court’s use of allegations of sex offenses of which defendant was acquitted at trial in its risk assessment calculation:

The record supports the affirmed finding that defendant engaged in sexual intercourse, deviate sexual intercourse, or aggravated sexual abuse, warranting the imposition of 25 points under risk factor 2 in determining defendant’s risk level under the Sex Offender Registration Act. Contrary to defendant’s argument, his acquittal of charges at his criminal trial relating to such conduct, does not foreclose the hearing court from finding, by clear and convincing evidence, that he engaged in such acts … .

From the dissent:

As this Court has recognized, the clear and convincing evidence standard is an exacting one … . “[T]he registration duties that SORA imposes are a nontrivial restriction on the individual’s liberty, and there is a material difference between having to register for ten years and having to register for life”… . In a case such as this, where the jury clearly had grave doubts about [the complainant’s] narrative, the courts below erred in concluding that her testimony was clear and convincing evidence of defendant having committed the sexual conduct necessary for an assessment of 25 points under risk factor two. People v Britton, 2018 NY Slip Op 02830, Ct App, 4-26-18

​CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP))/SEX OFFENDER REGISTRATION ACT (SORA) (ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP))/ACQUITTAL (SEX OFFENSES, SEX OFFENDER REGISTRATION ACT (SORA), ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP))

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YOUTHFUL OFFENDER RECORDS PROPERLY CONSIDERED BY THE BOARD AND THE SORA COURT (FIRST DEPT).

The First Department noted that in a risk assessment procedure pursuant to the Sex Offender Registration Act (SORA) the State Board of Examiners (and, therefore, the court) may consider youthful-offender-related documents:

New York’s Sex Offender Registration Act (SORA) requires the State Board of Examiners of Sex Offenders to assess an offender’s risk of reoffense. In making this determination, the Board has access to an offender’s full criminal background, including defendant’s YO-related records. SORA “thereby grants the Board access to the documents, which are available under the CPL if specifically required or permitted by statute'” … . Additionally, members of the Board have “access to YO-related records for the purpose of carrying out duties specifically authorized by law'” … . Therefore, “SORA’s directives both provide the statutory require[ment] or permi[ssion]’ to release the YO records under one provision of the YO statute, and describe the duties specifically authorized by law’ to allow for their release under another” … .

Accordingly, the CPL specifically provides the Board with access to YO-related documents … . As the Board’s inclusion of defendant’s YO adjudication “in assessing the risk of reoffense was based on the Board’s expertise and experience,” it is entitled to judicial deference … . As neither SORA nor the CPL “prohibit[s] the Board’s consideration of YO adjudications for the limited public safety purpose of accurately assessing an offender’s risk level,” Supreme Court appropriately assessed points under risk factors 9 and 10, relating to defendant’s prior YO adjudication … . People v Simono, 2018 NY Slip Op 02291, First Dept 4-3-18

​CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, YOUTHFUL OFFENDER, YOUTHFUL OFFENDER RECORDS PROPERLY CONSIDERED BY THE BOARD AND THE SORA COURT (FIRST DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (YOUTHFUL OFFENDER RECORDS PROPERLY CONSIDERED BY THE BOARD AND THE SORA COURT (FIRST DEPT))/YOUTHFUL OFFENDER (SEX OFFENDER REGISTRATION ACT, YOUTHFUL OFFENDER RECORDS PROPERLY CONSIDERED BY THE BOARD AND THE SORA COURT (FIRST DEPT))

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DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, remitted the matter for a new SORA hearing because the court cut off the defendant’s testimony and arguments in support of a downward departure:

“A court determining a defendant’s risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines'” … .

In this case, during the SORA hearing, the Supreme Court improperly, sua sponte, curtailed the defendant’s testimony and arguments in support of, inter alia, his request for a downward departure. People v Williams, 2018 NY Slip Op 01629, Second Dept 3-14-18

CRIMINAL LAW (SORA, DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))/JUDGES (CRIMINAL LAW, SORA, DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))

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DEFENDANT DID NOT WAIVE HIS RIGHT TO BE PRESENT AT THE SORA HEARING, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing County Court, noted that a defendant has the right to be present at a SORA hearing, and here the defendant did not waive that right:

“A sex offender facing risk level classification under [SORA] has a due process right to be present at the SORA hearing” … . While a defendant may waive the right to be present at the hearing, in order to establish a valid waiver it must be shown, inter alia, that “the defendant was advised of the hearing date, of his right to be present, and that the hearing would be conducted in his absence”… . Here, there is no evidence that the defendant was notified of the adjourned hearing date. Therefore, as the People correctly concede, the record fails to establish that the defendant voluntarily waived his right to be present at the hearing … . People v Hunt, 2018 NY Slip Op 01087, Second Dept 2-14-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, DEFENDANT DID NOT WAIVE HIS RIGHT TO BE PRESENT AT THE SORA HEARING, NEW HEARING ORDERED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT DID NOT WAIVE HIS RIGHT TO BE PRESENT AT THE SORA HEARING, NEW HEARING ORDERED (SECOND DEPT))

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YOUTHFUL OFFENDER ADJUDICATION PROPERLY CONSIDERED IN ASSESSING RISK LEVEL UNDER THE SEX OFFENDER REGISTRATION ACT (SORA) (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that a youthful offender (YO) adjudication can be considered in assessing the risk level of a sex offender under the Sex Offender Registration Act (SORA). Defendant contested the level three sex offender designation. The Court of Appeals held that consideration of the YO adjudication in this context did not violate the Criminal Procedure Law (CPL):

CPL 720.35 (2) provides the Board with access to YO-related documents. Defendant’s argument that access alone does not authorize use ignores that the CPL does not permit access for its own sake, but in furtherance of a statutory purpose. Here, that purpose is found in SORA, which requires the Board establish guidelines and make risk level determinations based, in part, on an offender’s past actions (Correction Law § 168-l [5]). * * *

Certainly, the youthful offender statute reflects the Legislature’s recognition of the difference between a youth and an adult, and the Legislature clearly made a policy choice to give a class of young people a distinct benefit. Nevertheless, in concluding that an earlier YO adjudication may be used in assessing points against defendant, the Board has not acted in violation of the CPL … . People v Francis, 2018 NY Slip Op 01017, CtApp 2-13-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT. YOUTHFUL OFFENDER ADJUDICATION PROPERLY CONSIDERED IN ASSESSING RISK LEVEL UNDER THE SEX OFFENDER REGISTRATION ACT (SORA) (CT APP))/SEX OFFENDER REGISTRATION ACT (SORA) (OUTHFUL OFFENDER ADJUDICATION PROPERLY CONSIDERED IN ASSESSING RISK LEVEL UNDER THE SEX OFFENDER REGISTRATION ACT (SORA) (CT APP))/YOUTHFUL OFFENDER (SEX OFFENDER REGISTRATION ACT. YOUTHFUL OFFENDER ADJUDICATION PROPERLY CONSIDERED IN ASSESSING RISK LEVEL UNDER THE SEX OFFENDER REGISTRATION ACT (SORA) (CT APP))

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APPEAL OF SORA RISK ASSESSMENT NOT PROPERLY BEFORE THE APPELLATE DIVISION, COUNTY COURT NEVER ISSUED THE REQUIRED ORDER (THIRD DEPT).

The Third Department determined the appeal of the SORA risk assessment was not properly before it because County Court never issued the required order:

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County Court, in a bench decision, adopted the People’s arguments regarding both the override and the assessment of additional points, denied defendant’s request for a downward departure and classified defendant as a risk level three sex offender. …

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County Court is statutorily required to “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based” … . The resulting order “must be in writing”…  and, further, must be “entered and filed in the office of the clerk of the court where the action is triable”… . The record before this Court does not reflect that County Court issued a written order or that any such order subsequently was entered and filed. Although County Court indicated that its bench decision would “serve[] as the order of the [c]ourt,” a bench decision is neither a substitute for the required written order nor an appealable paper … . Notably, neither the transcript of the court’s bench decision nor the standard form designating defendant’s risk level classification, the latter of which County Court signed and dated, contains the “so ordered” language required “so as to constitute an appealable order” … . Absent evidence of the required written order, this appeal is not properly before us and must be dismissed … . People v Scott, 2018 NY Slip Op 00203, Third Dept 1-11-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), APPEAL OF SORA RISK ASSESSMENT NOT PROPERLY BEFORE THE APPELLATE DIVISION, COUNTY COURT NEVER ISSUED THE REQUIRED ORDER (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (APPEAL OF SORA RISK ASSESSMENT NOT PROPERLY BEFORE THE APPELLATE DIVISION, COUNTY COURT NEVER ISSUED THE REQUIRED ORDER (THIRD DEPT))/APPEALS (CRIMINAL LAW, SEX OFFENDER REGISTRATION ACT (SORA), APPEAL OF SORA RISK ASSESSMENT NOT PROPERLY BEFORE THE APPELLATE DIVISION, COUNTY COURT NEVER ISSUED THE REQUIRED ORDER (THIRD DEPT))

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CERTIFICATION AS A SEX OFFENDER OCCURS UPON CONVICTION AND IS NOT REVIEWABLE IN A SORA RISK ASSESSMENT PROCEEDING (FIRST DEPT).

The First Department determined whether defendant should have been adjudicated a sex offender was not reviewable in a SORA risk assessment proceeding. Defendant was convicted of unlawful surveillance for making cell phone videos under women's dresses on the subway. Pursuant to the statute, unlawful surveillance is a sex offense, However the defendant can make a motion asking the court to find registration as a sex offender too harsh under the particular circumstances:

We agree with the People that the statute does not give a SORA court the power to determine a motion under Correction Law § 168-a(2)(e). While we find it significant that the provision assigns the duty of ruling on the motion to “the trial court” — notably the only time that phrase is used in SORA's numerous sections — we do not consider the use of the phrase to be a sufficient basis for our interpretation, because it is arguably malleable enough not to be limited to the court that actually presided over the defendant's trial. However, Correction Law § 168-d(1)(a), describing the “duties of the court,” provides a more definite indication of statutory intent, by way of language that clearly contemplates that certification as a sex offender occurs “upon conviction” and after consideration of any motion pursuant to Correction Law § 168-a(2)(e). Nothing else in the statutory scheme contradicts this understanding. People v Lema, 2018 NY Slip Op 00005, First Dept 1-2-18

CRIMINAL LAW (CERTIFICATION AS A SEX OFFENDER OCCURS UPON CONVICTION AND IS NOT REVIEWABLE IN A SORA RISK ASSESSMENT PROCEEDING (FIRST DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (CERTIFICATION AS A SEX OFFENDER OCCURS UPON CONVICTION AND IS NOT REVIEWABLE IN A SORA RISK ASSESSMENT PROCEEDING (FIRST DEPT))/SEX OFFENDER (CERTIFICATION AS A SEX OFFENDER OCCURS UPON CONVICTION AND IS NOT REVIEWABLE IN A SORA RISK ASSESSMENT PROCEEDING (FIRST DEPT))

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DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Eng, determined Supreme Court properly denied defendant’s request for a downward departure in this Sex Offender Registration Act (SORA) risk assessment proceeding. Defendant submitted two psychological risk assessments, the Static-99R and the Vermont Assessment, in support of the request for downward departure:

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To recognize a low or moderate-low score on the Static-99R and/or the Vermont Assessment as a mitigating factor would, in essence, permit SORA courts to rely on those instruments in lieu of the RAI [New York’s Risk Assessment Instrument} promulgated by the Board [of examiners of sex offenders] and designed to account for the specific factors prescribed by the Legislature. This would amount to a rejection of the RAI in favor of assessment instruments that serve the more limited function of attempting to measure risk of reoffense alone, in clear contravention of the legislative intent to require consideration of both risk of reoffense and the danger of harm posed by reoffense … . …

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Even were we to accept the proposition that the fact that a sex offender received a more favorable assessment on the Static-99R or Vermont Assessment could constitute an appropriate mitigating factor, we would find that the defendant failed to sustain his burden of proof in support of his request for a downward departure on this basis. …

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Our conclusion that an offender’s lower risk score on an alternate risk assessment instrument is not itself a mitigating factor that can support a downward departure does not necessarily mean that an offender cannot rely upon one or more of the individual risk factors included on such instruments to demonstrate that he or she is at a lower risk of reoffense or poses less of a danger to the community. While some of the risk factors included on the Static-99R and Vermont Assessment are also taken into account by the RAI, other risk factors are unique to those instruments. Here, however, the defendant has not identified any specific, unique risk factors on the Static-99R or Vermont Assessment that could qualify as a mitigating factor. People v Curry, 2017 NY Slip Op 09184, Second Dept 12-27-17

 

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) ( DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT))/MITIGATING FACTORS  (SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT))/

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