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Violent Felony Conviction for which Defendant Not Yet Sentenced Can Be Considered in SORA Assessment

The First Department determined a violent felony conviction for which the defendant had not yet been sentenced could be used as a risk factor in a SORA risk level assessment.  People v Franco, 2013 NY Slip Op 03168, 1st Dept, 5-2-13

 

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SORA Proof Burdens Explained

The Third Department noted the different proof burdens for a SORA classification hearing versus a modification hearing:

The People concede that defendant is entitled to a new hearing because Supreme Court treated the 2005 rehearing as one for modification, as opposed to classification (compare Correction Law § 168-n, with Correction Law § 168-o).   As the People now acknowledge, they bore the burden of establishing the determination sought by clear and convincing evidence … .  Inasmuch as the record here reflects that the burden was placed on defendant to demonstrate sufficient evidence warranting a departure from the risk level III classification (see Correction Law § 168-o [2]), we remit for a new hearing … . People v Middlemiss, 511311, 3rd Dept, 4-25-13

 

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Motion for SORA Downward Departure Requires Hearing​

The Second Department reversed the motion court because a motion for a downward departure (SORA) pursuant to Correction Law 168-o(2) requires a hearing:

By notice of motion dated September 21, 2010, the defendant moved pursuant to Correction Law § 168-o(2) for a downward modification of his risk level classification under the Sex Offender Registration Act (Correction Law article 6-C). The Supreme Court denied the defendant’s motion without holding a hearing. Because the requisite procedures set forth in Correction Law § 168-o were not followed, we reverse.  As the People correctly concede, the Supreme Court failed to conduct a hearing on the defendant’s motion, as it was required to do pursuant to Correction Law § 168-o(4) …. Accordingly, the matter must be remitted to the Supreme Court, Suffolk County, for a hearing and, thereafter, a new determination of the defendant’s motion. People v Runko, 2013 NY Slip Op 02555, 2012-07328, 2nd Dept, 4-17-13

 

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Criteria for Downward Departure from SORA Presumptive Risk Level

The Second Department described the criteria for a downward departure from the SORA presumptive risk level as follows: 

A court has the discretion to downwardly depart from the presumptive risk level in a proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) only after a defendant makes a twofold showing. First, a defendant must 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” … . Second, a defendant must prove by a preponderance of the evidence the facts necessary to support the applicability of that mitigating factor … . In the absence of that twofold showing, the court lacks discretion to depart from the presumptive risk level … .  People v Arroyo, 2013 NY Slip Op 02553, 2010-10108, 2nd Dept, 4-17-13

 

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Conduct in Prison Justified Upward Departure (SORA)

The Third Department upheld the SORA court’s upward departure from the SORA guidelines based upon the defendant’s exhibitionist sexual conduct in prison.  The Third Department wrote:

Even if, under factor 13, defendant had been assessed the full 20 points for unsatisfactory conduct while confined “with sexual misconduct” (for a total of 55 points, still a presumptive level I), as he urges should have occurred instead of an upward departure, this factor still would not adequately take into consideration the public nature of this conduct and the use of children’s images  to facilitate his arousal. People v Walker, 513776, 3rd Dept, 4-11-13

 

 

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SORA Finding Reduced Twenty Points—No Evidence or Findings Re: Targeting of Victim

The Fourth Department determined the People did not present sufficient evidence defendant targeted the victim and the SORA court did not set forth the relevant findings of fact and conclusions of law.  Therefore the SORA score was reduced by 20 points:

At the SORA hearing, the People had “the burden of proving the facts supporting the [risk level classification] sought by clear and convincing evidence” … . Here, the People failed to meet their burden of establishing that defendant “established or promoted” his relationship with the victim “for the primary purpose of victimization” (Sex Offender Registration Act…) ..The People presented no evidence that defendant, who met the victim at a party, targeted the victim for the primary purpose of victimizing her …. As a result of the court’s error, defendant’s score on the risk assessment instrument must be reduced by 20 points, and thus he should be presumptively classified as a level two risk.  We therefore modify the order accordingly.

We note in any event that we agree with defendant that the court failed to comply with Correction Law § 168-n (3), inasmuch as it failed to set forth the findings of fact and conclusions of law upon which it based its determination to assess points under risk factor 7 …

The court merely recited its conclusion, i.e., that “[d]efendant established a relationship with [the victim] for the purpose of victimization.” People v Johnson, 341, KA 12-00361, 4th Dept. 3-22-13

 

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In SORA Context, Mild Mental Retardation Is Not a “Mental Disability”

In the context of a SORA determination, the Fourth Department noted that proof the victim had been diagnosed as mildly mentally retarded did not demonstrate the victim suffered from a “mental disability” within the meaning of the Correction Law:

We agree with defendant, however, that the People failed to present the requisite clear and convincing evidence that the victim of the underlying crime suffered from a “mental disability” (see generally Correction Law § 168-n [3]), and thus the court erred in assessing 20 points against him under risk factor 6. Although the People presented evidence that the victim was diagnosed as mildly mentally retarded, “[t]he law does not presume that a person with mental retardation is unable to consent to sexual [activity], . . . and proof of incapacity must come from facts other than mental retardation alone” (People v Cratsley, 86 NY2d 81, 86). Here, the remaining evidence in the record relating to the victim’s capacity failed to establish that she was “incapable of appraising the nature of [her] own sexual conduct” (id. at 87; see People v Easley, 42 NY2d 50, 55-57; cf. People v Jackson, 70 AD3d 1385, 1385, lv denied 14 NY3d 714).  People v Green, 254, KA 11-00973, 4th Dept. 3-15-13

 

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SORA Hearing Procedure.

In this case, the Second Department clearly laid out the acceptable sources of information, the applicable standards of proof, and the criteria for departure from the presumptive level in a SORA hearing. People vs Lacewell, 2008-07498, Second Dept. 2-20-13

 

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Procedure for Modification of SORA Level.

The Third Department described the proper procedure for a petition for the modification of a SORA level pursuant to Correction Law section 168-o. Both an updated recommendation of the Board of Examiners and a hearing are required.  People vs Hazen, 514028 Third Dept. 2-14-13

 

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SORA Hearing—Insufficient Proof of Drug or Alcohol Abuse

Proof was insufficient to demonstrate “drug or alcohol abuse” under the SORA guidelines.  The SORA assessment was therefore improper. People vs. Palmer, People vs Long, Nos. 14 & 15, CtApp, 2-12-13

 

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