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HOLDING SORA HEARING IN DEFENDANT’S ABSENCE VIOLATED DUE PROCESS.

The Fourth Department determined defendant's presence is required at a Sex Offender Registration Act (SORA) hearing to determined defendant's risk level:

A sex offender has a due process right to be present at a SORA hearing … , and the court “violated the due process rights of defendant when it held the SORA hearing in his absence without verifying that he had received the letter notifying him of the date of the hearing and his right to be present” … . We are thus constrained to reverse the order and remit the matter to Supreme Court for a new hearing and sexually violent offender determination in compliance with Correction Law § 168-n (3). People v Encarnacion, 2016 NY Slip Op 03369, 4th Dept 4-29-16


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IF THE SORA COURT’S RELIANCE ON THE VICTIM’S GRAND JURY TESTIMONY, WHICH WAS NOT DISCLOSED TO THE DEFENDANT, WAS ERROR, UNDER THE FACTS, IT WAS HARMLESS ERROR.

The Second Department, over an extensive dissent, determined the SORA court's reliance on the victim's grand jury testimony, which was not provided to defense counsel, did not deprive defendant of due process of law. 20 points were assessed based upon the victim's helplessness. At the grand jury, the victim testified she was asleep (i.e., helpless) when the abuse began. Because evidence disclosed to the defendant amply notified defendant of the victim's claim to have been asleep, any error in relying on the undisclosed grand jury minutes was harmless:

The Court of Appeals was recently presented with the issue of whether a defendant's due process rights were violated when the hearing court relied, in part, upon grand jury minutes that were not disclosed to the defense in reaching the defendant's SORA risk level determination (see People v Baxin, 26 NY3d 6). The Court found that “[g]iven that [the] defendant is entitled to broad discovery of the evidence that is used against him in order to be able to defend himself . . . the failure to disclose the grand jury minutes was a due process violation” … . Significantly, the Court concluded that, given the overwhelming evidence which was disclosed to the defendant in support of the same risk factor, the error was harmless … . It further recognized that “[t]his is not to say that grand jury minutes must be disclosed to the defendant in every SORA proceeding as a matter of course. It remains within the hearing court's discretion to limit the release of such minutes” … .

Guided by these principles, even assuming that the defendant should have had disclosure of the subject grand jury minutes, as in Baxin, any error in failing to disclose them was harmless. There was overwhelming, unchallenged evidence, which provided the requisite clear and convincing evidence supporting the assessment of 20 points … . The record on appeal reveals that the defendant was amply notified through statements contained in the case summary, the presentence report, and other disclosed evidence of the victim's version of the facts and, specifically, her account that she was asleep when the abuse began. Indeed, defense counsel specifically challenged the assessment of points for physical helplessness based upon the victim's account of being asleep when the sexual abuse began. The portion of the victim's grand jury testimony relied upon by the SORA Court, namely, that the victim was asleep at the beginning of the incident, is the exact account contained in the case summary, which was fully disclosed to the defendant. Under these circumstances, the victim's grand jury testimony was cumulative to the disclosed evidence … . People v Wells, 2016 NY Slip Op 02978, 2nd Dept 4-20-16


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DEPORTATION OF DEFENDANT DID NOT RENDER APPEAL OF SORA RISK ASSESSMENT ACADEMIC; UPWARD DEPARTURE BASED UPON THE EXTREME VIOLENCE OF THE CRIME PROPER.

The Second Department, in a full-fledged opinion by Justice Leventhal, determined the fact defendant had been deported did not render his appeal of a Sex Offender Registration Act (SORA) level 2 risk assessment academic ( a matter of first impression in the department). The court further determine the SORA court properly increased defendant's risk level based on the extreme violence of the crime, even though the guidelines took violence into account:

… [T]he People have failed to demonstrate that the defendant's involuntary absence from New York renders review of the order designating him a level two offender academic. As a result of his level two designation, the defendant's name, photograph, the details of his crime, and other information can be accessed online at the Division website, notwithstanding the fact that he has been deported … . The outcome of an appeal such as this, which concerns a defendant's risk level designation, will have certain practical consequences with respect to SORA registration requirements, such as the duration of the posting of this information, which is already on the website (see Correction Law § 168-h). * * *

While the SORA Guidelines do take into account the use of violence under risk factor 1, the People's proof demonstrated, by clear and convincing evidence, that the SORA Guidelines did not adequately take into account the true nature of the defendant's actions, and that the defendant's conduct tended to show a higher likelihood of reoffense or danger to the community. The case summary indicates that the defendant repeatedly punched the victim in the face, placed a knife to her throat, threatened to kill her, put his mouth on her breasts and vagina, attempted to place his penis in her mouth, and put his penis in her vagina against her will. Following the incident, which lasted several hours, the police recovered various items within the subject residence that were covered in blood, and the victim's face was both bruised and bloody.

Thus, the defendant was properly designated a level two sex offender. People v Shim, 2016 NY Slip Op 01818, 2nd Dept 3-16-16

CRIMINAL LAW (SORA RISK LEVEL, DEPORTATION OF DEFENDANT DID NOT RENDER APPEAL ACADEMIC)/APPEALS (SORA RISK LEVEL, DEPORTATION OF DEFENDANT DID NOT RENDER APPEAL ACADEMIC)/SEX OFFENDER REGISTRATION ACT (SORA) (USE OF EXTREME VIOLENCE WARRANTED UPWARD DEPARTURE)

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Juvenile Delinquency Adjudication Can Not Be Used for the “Criminal History” Points Assessment

The sex offender risk classification was reversed because county court used a juvenile delinquency adjudication to calculate the “criminal history” points to be assessed. The Third Department noted that the juvenile delinquency adjudication cannot be used for the “criminal history” calculation, but it can be considered in determining whether to depart from the recommended risk level:

… [B]ased on our recent holding in People v Shaffer (129 AD3d 54, 55-56 [2015]), County Court is precluded from using juvenile delinquency adjudications to assess points for criminal history under the RAI [risk assessment instrument], although the facts underlying a juvenile delinquency adjudication may still be “considered when determining whether to depart from the recommended risk level” (id. at 56). People v Updyke, 2015 NY Slip Op 08481, 3rd Dept 11-19-15

 

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Sexual Conduct That Does Not Rise to the Level of a SORA Sex Offense May Be Considered Under the “Number of Victims” Risk Factor

The Court of Appeals determined that the “number of victims” risk factor (risk factor 3) under the Sex Offender Registration Act (SORA) properly included “sexual conduct” that did not amount to SORA level sex offenses and which involved “webcam chats:”

Given that the Guidelines do not mention a SORA level offense in risk factor 3, but instead address the more general term, “sexual conduct,” we agree with the People that the conduct does not have to amount to a SORA level offense in order to be considered. Furthermore, the child can still be a victim under risk factor 3 even though the defendant and the child were not in the same room, but were communicating through a webcam … . People v Izzo, 2015 NY Slip Op 07576, CtApp 10-20-15

 

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Failure to Turn Over to the Defendant Grand Jury Minutes Use by the Judge in SORA Risk Calculation Violated Due Process

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined the failure to turn over to the defendant grand jury minutes used by judge in the Sex Offender Registration Act (SORA) proceedings was a violation of due process. However, in light of the other evidence, the error was harmless. The Court of Appeals explained the application of due process protections to SORA proceedings:

It is well established that sex offenders are entitled to certain due process protections at their risk level classification proceedings (see … Doe v Pataki, 3 F Supp 2d 456 [SD NY 1998]). Doe, for example, recognized that, although “the due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial . . . the consequences of registration and notification under the Act are sufficiently serious to warrant more than mere summary process” (Doe, 3 F Supp 2d at 470 [internal quotation marks and citation omitted]). Accordingly, that court held that in order to satisfy due process concerns, the offender must be afforded prehearing discovery of the documentary evidence relating to his or her proposed risk level adjudication (see Doe, 3 F Supp 2d at 472).

Likewise, we have observed that “[t]he bedrock of due process is notice and opportunity to be heard” … . * * *

In keeping with our precedent, the Correction Law requires that defendant is entitled to prehearing access to the documents relied upon by the Board in reaching a risk level recommendation (see Correction Law § 168-n [3]…). Although the statute may not expressly state that defendant is likewise entitled to any materials submitted by the District Attorney in meeting its burden of establishing the facts supporting a risk level determination by clear and convincing evidence, the same due process concerns are presented in that context. Moreover, broad disclosure is consistent with Doe’s recognition that an offender should be accorded discovery “of all papers, documents and other material relating to his proposed level and manner of notification” (3 F Supp 2d at 472). People v Baxin, 2015 NY Slip Op 07530, CtApp 10-15-14

 

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Upward Departure from Level One to Three Not Warranted by the Evidence

The Second Department reversed the SORA court, finding that the People did not prove by clear and convincing evidence an upward departure from the presumptive risk level was warranted. The upward departure was erroneously based upon defendant’s psychiatric history, the place of the offense (a group home), a parole violation ten years before the sex offense and two older bench warrants. The court explained the “upward departure” analytical criteria and reduced the defendant’s risk level from three (the highest) to one (the lowest):

Once the presumptive risk level has been established at a risk level hearing, the court is permitted to depart from it if “special circumstances” warrant a departure … . 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, that is otherwise not adequately taken into account by the [SORA] [G]uidelines” … . In determining whether an upward departure is permissible and, if permissible, appropriate, the 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 from that risk level … . 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 … .

Here, the People did not meet their burden at the hearing. The People contended that the defendant’s psychiatric history and the fact that the defendant’s sex offense was committed in a group home constituted aggravating factors not adequately taken into account by the SORA Guidelines. The People failed to prove by clear and convincing evidence that the defendant’s psychiatric history was related to his risk of reoffense … . Additionally, they failed to establish, as a matter of law, that the particular setting of the defendant’s crime was an aggravating factor not taken into account under the Guidelines … . Finally, as the defendant contends, the court erred in sua sponte basing its decision to depart from the presumptive risk level on his parole violation occurring 10 years before he committed the sex offense and on two bench warrants, issued 14 and 18 years before he committed the sex offense. Those grounds for departure had never been raised, and the defendant was never afforded an opportunity to be heard on the issue of whether they were proper grounds for departure … . In any event, it was not established by clear and convincing evidence that those circumstances were relevant to the defendant’s risk of reoffense … . People v Manougian, 2015 NY Slip Op 07484, 2nd Dept 10-14-15

 

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Marijuana Convictions, Standing Alone, Are Not a Sufficient Basis for Assessment of Points Against Defendant for Drug Abuse

The Second Department determined points for drug abuse should not have been assessed against defendant based solely on a “marijuana” convictions:

… [T]he hearing court erred in assessing points under risk factor 11 (Drug or Alcohol Abuse) based solely on the fact that the defendant’s criminal history includes convictions for the possession and sale of marijuana. Under risk factor 11, possession or sale of marijuana does not, in itself, amount to drug abuse … . Since the People presented no evidence that the defendant had ever used, much less abused, drugs or alcohol, the evidence offered by the People was insufficient to satisfy their burden of proving, by clear and convincing evidence, that the defendant had “a substance abuse history or was abusing drugs and or alcohol at the time of the offense”.. . People v Velazquez, 2015 NY Slip Op 06323, 2nd Dept 7-29-15

 

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In a Risk Level Modification Proceeding, a Defendant Is Entitled to All the Documents Reviewed by the Board

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined defendant was entitled to access to all the documents reviewed by the New York State Board of Examiners of Sex Offenders (Board) in connection with the Board’s recommendation that defendant’s classification remain at risk level 3.  However, County Court’s refusal to grant an adjournment to allow defendant to gain access to missing documents (two emails) was not an abuse of discretion. The record evidence in support of the denial of the modification was overwhelming:

Section 168-o (4), applicable when a petitioner seeks modification of the risk level, does not contain any language entitling a petitioner to pre-hearing discovery, but simply provides that a petitioner has a right to submit “any information relevant to the review” (Correction Law § 169-o [2]). Further, the right to petition the sentencing court to be “relieved of any further duty to register” under Correction Law § 168-o (1) does not permit the court to review the correctness of the initial risk level determination (see Correction Law § 168-g [4]…). While there are statutory differences in the two [*5]proceedings, we agree with defendant that the procedural due process rights, in regard to the requested documents, were the same. Thus, defendant was entitled to access to the documents.

Nonetheless, it is well-settled that the decision to grant an adjournment is a matter of discretion for the hearing court … . “When the protection of fundamental rights has been involved in requests for adjournments, that discretionary power has been more narrowly construed” … . Under the circumstances of this case, it cannot be said the court abused its discretion as a matter of law in failing to adjourn the hearing to gather the two emails. People v Lashway, 2015 NY Slip Op 04877, CtApp 6-11-15

 

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Juvenile Delinquency Adjudication Should Not Have Been Considered in SORA Risk Assessment—Criteria for an Upward Departure Explained

The Second Department determined defendant’s juvenile delinquency adjudication should not have been considered in determining the defendant’s risk level. The court explained the proper procedure for considering an upward departure: … “[T]he County Court upwardly departed without following the required three analytical steps of determining, first, whether an aggravating factor exists as a matter of law, second, whether the People have adduced clear and convincing evidence of the facts in support of that aggravating factor, and third, whether, in the court’s discretion, the totality of the circumstances warrant the upward departure to avoid an under-assessment of the defendant’s dangerousness and risk of sexual recidivism …”. People v Ruland,  2015 NY Slip Op 04464, 2nd Dept 5-27-15

 

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