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Abstention from Alcohol While Incarcerated and Exemplary Prison Record Did Not Warrant Downward Departure Re: Sex Offender Status/Basics of Sex Offender Registration Act (SORA) Proceedings Explained In Some Depth

The First Department affirmed the sex offender status determined by Supreme Court, rejecting the arguments that an exemplary prison record and abstention from alcohol during a long incarceration warranted a downward departure.  The court took the trouble to explain some of the basics of a Sex Offender Registration Act (SORA) determination:

In assessing a sex offender’s danger to the community, and therefore, its recommendation to the court hearing a SORA application, the Board of Examiners of Sex Offenders (BOSE) must consider 15 statutory factors, applying them in accordance with the Risk Assessment Guidelines developed to assess an individual applicant’s risk of a repeat offense (Correction Law § 168—l[5]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006]). The evaluation is made using a Risk Assessment Instrument (RAI), identifying each factor which, if applicable, is assigned a numerical value. If a particular factor is not applicable, it is assessed at zero. The values are then tallied, resulting in a recommended risk assessment which is considered as presumptively correct at the SORA hearing before the court … .

One of the factors BOSE considers is “whether the sex offender’s conduct was found to be characterized by repetitive and compulsive behavior, associated with drugs or alcohol” … (Correction Law § 168-1[5][a][ii]). The guidelines clarify that if the individual has a history of drug or alcohol abuse “or was abusing drugs and or alcohol at the time of the offense,” 15 points will be assessed in that category (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15). Pursuant to the guidelines, BOSE or the court may choose to score zero points in this category, if the drug and/or alcohol abuse is “in the distant past, but [the defendant’s] more recent history is one of prolonged abstinence” … .

Since defendant admittedly committed his crime while intoxicated, this alone supports the 15 point assessment made against him in this category … . Thus the issue turns on whether his prolonged abstinence from alcohol use, while incarcerated, provides a basis for a 15 point reduction in this category. We find that it does not.

We have consistently held that even when alcohol use in the commission of the crime is remote in time, and the defendant has abstained from alcohol use for a prolonged period while incarcerated, such remoteness and abstinence are unreliable predictors of the risk for re-offense post-release, or to the threat posed by the sex offender to public safety … .   * * *

The SORA court also providently exercised its discretion in denying defendant’s application for a discretionary downward departure to a level 2 based upon claims that he had an exemplary record while incarcerated, has shown remorse for his crime, and is now a productive member of society * * *.

We emphasize that a SORA risk-level determination is not an extended form of punishment for the sex crime committed, but a collateral consequence of the conviction intended to protect the public at large from the possibility of future crime … . A departure from a sex offender’s presumptive risk level is generally warranted only where “there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4…)… .  People v Watson, 2013 NY Slip Op 08379, 1st Dept 12-17-13

 

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Double Hearsay in Presentence Report Did Not Render the Information Unreliable Re: a SORA Sex Offender Proceeding

The Second Department determined that the presence of double hearsay in a presentence report did not render the information unreliable such that it could not be considered in a SORA proceeding to determine the level of a sex offender:

“In assessing points, evidence may be derived from the defendant’s admissions, 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, as the People correctly point out, the presentence report prepared by the Department of Probation, the felony complaint sworn to and signed by the arresting officer, and the arrest report constituted “reliable hearsay” (Correction Law § 168-n[3]) and provided clear and convincing evidence that the defendant was armed with a dangerous instrument during the commission of the rape … . Contrary to the defendant’s contention, the fact that certain statements contained in these documents constituted “double hearsay” did not necessarily render them unreliable for purposes of a SORA hearing … . Moreover, even though certain proof may not have been admissible at the criminal trial, the Legislature did not limit the types of materials admissible in a SORA proceeding to what would be admissible at a civil or criminal trial… . People v Dash, 2013 NY Slip Op 07948, 2nd Dept 11-27-13

 

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Defendant Should Have Been Allowed to Present Evidence Relating to Victim’s Recantation at SORA Hearing

The Second Department determined that Supreme Court should have allowed defendant to present evidence (at the SORA hearing) of the victim’s (his daughter’s) recantation of her allegations of sexual abuse, including the testimony of the victim:

The Supreme Court erred in precluding the defendant from offering into evidence affidavits from his daughter recanting the underlying allegations of sexual abuse, and denying the defendant’s motion in limine to permit his daughter to testify at the SORA hearing. At a SORA hearing, “[t]he court shall allow the sex offender to appear and be heard” (Correction Law § 168-n[3]). The People bear of the burden of establishing, by clear and convincing evidence, the facts supporting the assessment of points under the Guidelines issued by the Board of Examiners of Sex Offenders under the Sex Offender Registration Act (see Correction Law article 6-C [hereinafter SORA]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). The SORA court “shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations” (Correction Law § 168-n[3]). Further, “[f]acts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated” (Correction Law § 168-n[3]). Here, the only facts elicited at the time of the defendant’s plea of guilty were that, on one occasion, he touched his daughter’s breasts and that he did so for sexual gratification, and therefore he was barred from relitigating those facts in this SORA proceeding (see Correction Law § 168-n[3]). However, the defendant was entitled to rely upon the proffered evidence for the limited purpose of contesting the People’s allegations that he engaged in intercourse with his daughter and that the sexual misconduct was ongoing, which resulted in the assessment of points under risk factors 2 and 4. Since the excluded evidence was relevant to material issues at the hearing (i.e., the nature and duration of the sexual contact), the defendant should have been permitted to introduce it… . People v Holmes, 2013 NY Slip Op 07459, 2nd Dept 11-13-13

 

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Upward Departure in SORA Proceeding Affirmed

The Third Department affirmed County Court’s upward adjustment of defendant’s sex offender status from a presumptive level I to a level III.  Defendant had pled guilty to a course of sexual conduct with a young girl entrusted to his care spanning five years:

“An upward departure from a presumptive risk classification is justified when an aggravating factor exists that is not otherwise adequately taken into account by the risk assessment guidelines and the court finds that such factor is supported by clear and convincing evidence” … .  The circumstances underlying these charges as well as defendant’s past misconduct may be considered within the context of this proceeding … .  Here, additional factors established by the record, not adequately taken into account by the guidelines, included defendant’s disregard and abuse of other children even younger than the victim who were also entrusted to his care, his mental instabilities, and the repeated and lengthy nature of his conduct toward the victim.  Accordingly, we find that the record sufficiently supports County Court’s upward departure from the presumptive risk level… .  People v Muirhead, 511847, 3rd Dept 10-31-13

 

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In SORA Proceeding, Offender Did Not Provide Sufficient Proof of Exceptional Response to Treatment

The Second Department noted that while an offender’s response to treatment can be a mitigating factor supporting a downward departure in a SORA proceeding, there was insufficient evidence of an exceptional response to treatment in this case:

A downward departure from a sex offender’s presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the Sex Offender Registration Act (hereinafter SORA) Guidelines … . A defendant seeking a downward departure has the initial burden of “(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” … .

Here, the defendant identified an appropriate mitigating factor that could provide a basis for a discretionary downward departure (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]… .). In this regard, the SORA Guidelines recognize that “[a]n offender’s response to treatment, if exceptional, can be the basis for a downward departure” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]…). However, the defendant failed to establish, by a preponderance of the evidence, the facts in support of its existence… . People v Guzman, 2013 NY Slip Op 06671, 2nd Dept 10-16-13

 

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SORA Determination Made at Sentencing (Which Included Incarceration) Invalid

The Second Department reversed Supreme Court’s SORA determination because the court failed to follow the procedure required for an incarcerated defendant.  The SORA determination was made at sentencing:

In this case, the Supreme Court sentenced the defendant to a nine-month term of incarceration without any probation supervision. The court conducted the risk assessment hearing and made its risk level determination immediately after sentencing, using a risk level assessment instrument prepared by the District Attorney’s office. This violated SORA and deprived the defendant of his right to due process … . Pursuant to the SORA statutory scheme, a risk level determination should not have been made until 30 days before his release from custody (see Correction Law § 168-n[2]… ). The court’s determination should have been preceded by the Board’s risk level recommendation, and the defendant should have been notified of the opportunity to submit to the Board any information that he believed was relevant for its review (see Correction Law § 168-n[2], [3]). Under the circumstances presented here, the fact that the defendant did not explicitly object to this procedure does not indicate that he knowingly and intelligently waived these statutory and due process rights or failed to preserve the issue for appellate review … . Moreover, while Correction Law § 168-l(8) provides that, notwithstanding the Board’s failure to act, a court may still make a determination regarding a sex offender’s risk level, “this must be read as applying only where the Board had the opportunity to make a recommendation in the first instance” … . Here, the Board had no such opportunity, since the risk level determination was erroneously made immediately after the defendant was sentenced. As a result, “the Supreme Court was without a statutorily-authorized basis for making a risk level determination”… .  People v Game, 2013 NY Slip Op 06670, 2nd Dept 10-16-13

 

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Mitigating Factor (12 Years Since Release) Did Not Warrant Downward Departure in SORA Proceeding

he Second Department affirmed Supreme Court’s refusal to depart downward in a SORA proceeding, even though the fact that defendant had not been convicted of any sex offenses in the 12 years following his release from prison was a mitigating factor not taken into account by the risk assessment guidelines:

… [T]he defendant requested that the Supreme Court downwardly depart from his designation as a presumptive risk level two sex offender. In that respect, the defendant demonstrated, by a preponderance of the evidence, that he had not been convicted of any sex offenses in the 12 years following his release from prison, which is a mitigating factor not adequately taken into account by the SORA Risk Assessment Guidelines … . Nevertheless, in light of the grievous nature of the defendant’s offense and, thus, the danger he poses to society should he reoffend, the Supreme Court did not improvidently exercise its discretion in declining to downwardly depart from the presumptive risk level (…Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 2 [2006]). People v Rivera, 2013 NY Slip Op 05808, 2nd Dept 9-11-13

 

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Criteria for Downward Departure in SORA Proceeding Explained

The Second Department explained the criteria for a downward departure in a SORA proceeding:

A court has the discretion to downwardly depart from the presumptive risk level in a proceeding pursuant to SORA (see Correction Law article 6-C) only when the defendant makes a twofold showing … . The defendant must first identify, as a matter of law, an appropriate mitigating factor, namely, a factor which “tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines” (…see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006 ed]). Next, the defendant must prove by a preponderance of the evidence the facts necessary to support the applicability of that mitigating factor … . In the absence of this twofold showing, the court lacks discretion to depart from the presumptive risk level … . Here, the defendant failed to make the requisite showings. Consequently, the Supreme Court did not have the discretion to depart from the presumptive risk level … . People v Ologbonjaiye, 2013 NY Slip Op 05807, 2nd Dept 9-11-13

 

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SORA Court Has Discretion to Deny Downward Departure Even When Mitigating Factor Demonstrated by Preponderance of Evidence

In affirming the SORA court’s denial of an application for a downward departure, the Second Department noted that even where the defendant makes a showing by a preponderance of the evidence in support of a mitigating factor, the court need grant the application:”

A sex offender’s successful showing by a preponderance of the evidence of facts in support of an appropriate mitigating factor does not automatically result in the relief requested, but merely opens the door to the SORA court’s exercise of its sound discretion upon further examination of all relevant circumstances'” … .  People v Martinez-Guzman, 2013 NY Slip Op 05561, 2nd Dept 8-7-13

 

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Insufficient Evidence of History of Alcohol and Drug Abuse in SORA Proceeding

The Fourth Department determined there was insufficient evidence in a SORA proceeding to find defendant had a history of alcohol and drug abuse.  The case summary stated that “Probation identified [defendant’s] continued drug and alcohol abuse as problematic, and he refused to attend treatment for th[at] problem.”  The Court wrote:

There is …no evidence that defendant was ever screened for substance abuse issues …, “only very limited information about his alleged prior history of drug and alcohol abuse” …, and no information about what treatment was recommended or why treatment was recommended ….  Under these circumstances, the case summary alone is insufficient “to satisfy the People’s burden of establishing that risk factor by clear and convincing evidence” ….

Further, defendant’s prior convictions for criminal possession and sale of marihuana and criminal possession of a controlled substance in the seventh degree do not constitute clear and convincing evidence that defendant used drugs, let alone that he had a history of abusing them … .  During the presentence investigation, defendant never admitted to using drugs or alcohol, and he denied abusing any substances at the SORA hearing … Defendant’s admission that he was intoxicated during a previous incident, which led to a rape charge that was subsequently dismissed, is insufficient to establish that his sexual misconduct can “be characterized by repetitive and compulsive behavior[] associated with drugs or alcohol” (Correction Law § 168-l [5] [a] [ii]), especially because defendant does not have any other history of intoxication with respect to his sexual offenses, including the instant offenses ….  Consequently, as noted, the People failed to meet their burden of establishing by clear and convincing evidence that defendant had a history of alcohol or drug abuse… .  People v Coger, 815, 4th Dept 7-19-13

 

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