You are here: / Sex Offender Registration Act (SORA)
,

A SORA Assessment in a Child Pornography Case Can Take Into Account Whether the Depicted Children Were Strangers to the Defendant (Factor 3) and the Number of Children Depicted (Factor 7)—-The Standard of Proof for a Defendant’s Application for a Downward Departure from the SORA Guidelines is “A Preponderance of the Evidence”

In a full-fledged, detailed and extensive opinion by Judge Abdus-Salaam, over dissents, the Court of Appeals determined that factors 3 and 7 of an assessment under the Sex Offender Registration Act (SORA) applied to child pornography cases.  Factor 7 allows the assessment of points where the victim of a sex offense is a stranger to the defendant, and factor 3 allows the assessments of points based on the number of victims.  In the context of child pornography, therefore, the images of children the defendant does not know and the number of children depicted in the images, i.e., the number of victims, can be taken into account in determining a defendant's SORA score.  The Court of Appeals also settled a difference among the appellate divisions by setting “a preponderance of the evidence” as the standard for the defendant's evidence submitted in support of a downward departure from the guidelines:

Given that child pornography offenders substantially harm the mental health of abused children and, via the consumption of child pornography, encourage others to commit the hands-on sexual abuse needed to produce that material, it is difficult to credit defendants' claims that, due to their failure to personally physically abuse children, the risk of harm caused by their offenses should not be accounted for in the manner authorized by the plain language of factors 3 and 7. Although those aggravating factors may not represent the exact same risks in child pornography cases as in those involving physical contact, the presence of those factors in child pornography cases increases the offender's potential to psychologically harm a greater number of children to a greater degree. The guidelines may account for the variable risk that certain child pornography offenders who have an unusually strong compulsion to consume and distribute child pornography will provide exceptional support to an illicit trade that physically and psychologically harms children. People v Gillotti, 2014 NY Slip Op 04117, CtApp 6-10-14

 

,

Case Summary by Board of Examiners of Sex Offenders and Sworn Felony Complaint Constitute Clear and Convincing Evidence in a SORA Proceeding

The Second Department determined the case summary provided by the Board of Examiners of Sex Offenders and the sworn felony complaint provided clear and convincing evidence of continuing sexual misconduct against the victim:

In establishing a defendant’s risk level pursuant to the Sex Offender Registration Act (hereinafter SORA) (see Correction Law art 6-C), the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought (see Correction Law § 168-n[3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]…). ” In assessing points, evidence may be derived from . . . the victim’s statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders . . . or any other reliable source, including reliable hearsay'” … .

Here, the case summary and the sworn felony complaint constituted “reliable hearsay” (Correction Law § 168-n[3]…)  and provided clear and convincing evidence to warrant the assessment of 20 points under risk factor four, for engaging in a continuing course of sexual misconduct against the victim … .  People v Patronick, 2014 NY Slip Op 03816, 2nd Dept 5-28-14

 

,

Evidence Defendant Had Victimized Other Children Justified Upward Departure in SORA Proceeding

The Second Department determined that clear and convincing evidence defendant had victimized other children justified an upward departure in the SORA proceeding:

…[T]he court’s classification of the defendant as a level three sex offender was justified. The People proved by clear and convincing evidence that the defendant had engaged in sexual misconduct with children other than the child whose victimization led to the defendant’s conviction. This constituted aggravating factors of a kind not otherwise taken into account by the guidelines that warranted an upward departure to level three … . People v DeJesus, 2014 NY Slip Op 03815, 2nd Dept 5-28-14

 

,

Quantity and Nature of Child Pornography Warranted an Upward Departure in a SORA Proceeding

The Second Department determined the quantity and nature of the child pornography in defendant’s possession warranted an upward departure in a SORA proceeding:

…[I]n light of the large quantity of child pornography recovered from the defendant’s possession and the nature of that material, which included, among other things, images and videos depicting the torture of children, the County Court properly determined that there were aggravating factors not adequately taken into account by the SORA guidelines … . Upon making such a determination, the court providently exercised its discretion in granting the People’s application for an upward departure from the presumptive sex offender risk level … . People v Rotunno, 2014 NY Slip Op 03817, 2nd Dept 5-28-14

 

,

Response to Sex Offender Treatment Program Must Be “Exceptional” to Warrant Downward Departure (SORA)

The Second Department noted that defendant did not present sufficient support for a downward departure based upon his participation in a sex offender treatment program because the defendant did not establish his response to treatment was “exceptional.” People v Tisman, 2014 NY Slip Op 02913, 2nd Detp 4-30-14

 

,

Remote Drug-Related Convictions and a Single DWAI Not Enough to Assess Points (in a SORA Proceeding) for Substance Abuse

The Third Department determined points for substance abuse should not have veen assessed against the defendant in a SORA proceeding:

Here, there is no indication on this record that either drugs or alcohol played a role in the offense at issue herein or in defendant’s prior sex offense. County Court relied on defendant’s 1992 convictions for criminal sale of a controlled substance in the third degree, his 2002 conviction for criminal possession of a controlled substance in the seventh degree, and his 2009 conviction for driving while ability impaired. However, in our view these widely spaced incidents are not of the nature or degree to establish a pattern of drug or alcohol use by clear and convincing evidence (see Correction Law § 168-l [5] [a] [ii]…). The 1992 convictions, as well as other information relied upon in the case summary pertaining to defendant’s drug and/or alcohol use at that time, are excessively remote …, and his 2002 conviction for criminal possession of a controlled substance in the seventh degree does not prove drug use …, leaving his 2009 conviction for driving while ability impaired as the sole evidence of defendant’s substance abuse within the past 20 years … . People v Ross, 2014 NY Slip Op 02472, 3rd Dept 4-10-14

 

,

Downward Departure Warranted in SORA Proceeding Where Victim’s Lack of Consent Was Solely By Virtue of Age

The Second Department, over a dissent, determined the fact that the victim’s lack of consent to sexual intercourse was due solely to the inability to consent by virtue of age warranted a downward departure in a SORA proceeding. The court noted that, although the victim became pregnant, there was no evidence the defendant intended to make the victim pregnant, and the defendant pays child support and visits the child often:

…[T]he SORA Guidelines provide that “[a] court may choose to downwardly depart from the risk assessment in an appropriate case and in those instances where (i) the victim’s lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points [for sexual contact with the victim, risk factor 2] results in an over-assessment of the offender’s risk to public safety'” … . The evidence in this case proves the existence of the facts supporting this ground for departure.It is true, as our dissenting colleague points out, that there was an 11-year difference in age between the defendant and the victim, and that the victim became pregnant as a result of the defendant’s crime. We share our colleague’s concern about these facts and about the significance of the age differential … . Nevertheless, the purposes of the SORA Guidelines are to assess the risk that a sex offender will reoffend and the offender’s threat to public safety (see Correction Law § 168-l[5]). There is no evidence here that the defendant committed his crime with the intention that the victim become pregnant, so the fact that a pregnancy did result is irrelevant to the SORA risk level determination. Moreover, the evidence at the hearing demonstrated that the defendant pays child support to the victim. While, as our dissenting colleague points out, payment of child support is a legal obligation, it was undisputed at the hearing that the defendant not only pays child support, but that he also regularly travels a significant distance to visit the child. People v Marsh, 2014 NY Slip Op 02274, 2nd Dept 4-2-14

 

,

Brutality of Offense Warranted an Upward Departure in SORA Proceeding

The Second Department determined the brutality involved in the offense warranted an upward departure:

…[I]n light of the extreme brutality and violence of the defendant’s conduct in his commission of the underlying crimes, which included holding the victim hostage in her home over the course of approximately 13 hours, repeatedly threatening to stab her with a knife and burn her to death with gasoline, raping her twice, locking her in a closet, choking and punching her, and engaging in a standoff with the police, the County Court properly determined that there were aggravating factors not adequately taken into account by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary … . Upon making such a determination, the County Court providently exercised its discretion in granting the People’s application for an upward departure from a level two to a level three sex offender … . People v Soevyn, 2014 NY Slip Op 02275, 2nd Dept 4-2-14

 

,

No Basis in Law for “Automatic Override” Based Upon a Prior Sex Crime Conviction to Raise Sex Offender Status Above the Presumptive Level (SORA)

The Fourth Department reversed County Court’s determination that defendant, who was a presumptive level two sex offender, should be classified as a level three offender on the basis of a prior felony conviction of a sex crime.  The County Court described the authority for the upward departure as an “automatic override.”  The Fourth Department noted that an “automatic override” does not exist in this context and explained the criteria for an upward departure:

Based upon the total risk factor score of 85 points on the risk assessment instrument, defendant was presumptively classified as a level two risk. County Court determined that defendant was a level three risk based on the automatic override for a prior felony conviction of a sex crime. That was error. “[N]o basis in law exists for . . . an automatic override [to] increase[] defendant’s presumptive risk level two designation to risk level three” … . “A departure from the presumptive risk level is warranted where there exists an aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the guidelines” … . “ ‘There must exist clear and convincing evidence of the existence of special circumstance[s] to warrant an upward or downward departure’ ” … . People v Moore, 357, 4th Dept 3-28-14

 

,

Burden Is on Defendant in SORA Reclassification Proceeding/Fact that Defendant Was Not Provided With All the Documents Reviewed by the Board Did Not Violate Due Process

In a SORA reclassification proceeding, the Third Department, over a dissent, determined the defendant was not deprived of due process by the SORA court’s denial of an adjournment for the purpose gathering all the documents reviewed by the Board of Examiners of Sex Offenders in making its updated recommendation.  The Third Department noted that, unlike in the initial SORA proceeding where the burden of proof is on the People, in a reclassification proceeding the burden is on the defendant:

Correction Law § 168-o (2) provides a sex offender who is required to register pursuant to SORA with the opportunity to periodically seek a downward modification of his or her risk level classification.  However, the burden falls upon the sex offender to establish by clear and convincing evidence that a modification is warranted (see Correction Law § 168-o [2]), and the trial court’s determination will not be disturbed absent an abuse of discretion… . * * *

We do not take issue with the argument that defendant was entitled to discovery of the materials in question.  However, all discovery is subject to certain limitations and the court has “considerable discretion to supervise the discovery process” … .  In our view, the question before us distills to whether County Court abused its discretion in refusing to adjourn the hearing in order for defendant to belatedly gain access to the requested documents. In this regard, County Court’s decision to deny defendant’s request must be evaluated with full consideration of the attendant circumstances before the court, including the timeliness thereof …, and we cannot agree that reversal is required based solely on the fact that defendant did not obtain the requested materials prior to the hearing. People v Lashway, 514859, 3rd Dept 12-26-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy