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THE MAJORITY DETERMINED THE DEFENDANT DEVELOPED THE RELATIONSHIP WITH THE COMPLAINANT FOR THE PRIMARY PURPOSE OF VICTIMIZING HER AND THEREFORE 20 POINTS WERE PROPERLY ASSESSED UNDER RISK FACTOR 7; THE COMPREHENSIVE DISSENT ARGUED THERE WAS A PRE-EXISTING RELATIONSHIP WITH THE COMPLAINANT WHICH RENDERD RISK FACTOR 7 INAPPLICABLE UNDER THE COURT OF APPEALS RULING IN COOK (SECOND DEPT).

The Second Department determined, over a comprehensive dissent, that defendant was properly assessed 20 points because his relationship with the 13-year-old victim was deemed to have been established for the primary purpose of victimizing her. The dissent argued there was a pre-existing relationship and, therefore, defendant did not develop the relationship for the purpose of victimization:

… [T]he record indicates that the defendant did not have a long-standing preexisting relationship with the complainant’s parents, and was not involved in the complainant’s life since her infancy. Rather, the defendant had worked with the complainant’s uncle and was invited to the uncle’s house for lunch, where he met the complainant. Thus, this case is readily distinguishable from the circumstances of Cook [29 NY3d at 121]. Contrary to the position of our dissenting colleague, the fact that the defendant’s initial contact with the complainant was unplanned and in person, rather than through the internet, is not determinative with respect to the assessment of points under risk factor 7 based on an offender’s establishment or promotion of a relationship with the victim for the primary purpose of victimization … . The Guidelines, which were created in 1996, do not limit the assessment of points under those circumstances to situations where the offender and the victim initially met online. People v Jony, 2023 NY Slip Op 04674, Second Dept 9-20-23

Practice Point: A long-standing relationship between a defendant and a victim of sexual abuse may demonstrate the relationship was not established for the primary purpose of victimization rendering the assessment of 20 points under risk factor 7 inapplicable. Here the majority concluded there was no such pre-existing relationship, but the dissent made a strong contrary argument.

 

 

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THE SORA RISK-LEVEL MOTION COURT SHOULD NOT HAVE RE-OPENED THE HEARING TO AMEND ITS ORIGINAL RISK-LEVEL DETERMINATION; THE CRITERIA FOR A MOTION TO RENEW WERE NOT MET; THE “INHERENT AUTHORITY” TO RE-OPEN APPLIES ONLY WHEN THE ORIGINAL RULING WAS BASED ON A MISTAKE; THE PEOPLE WERE NOT DEPRIVED OF THE OPPORTUNITY TO APPLY FOR AN UPWARD DEPARTURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the SORA court should not have reopened the SORA risk-level hearing to amend its prior risk-level ruling. The criteria for a motion to renew were not met and the other justifications for re-opening the hearing were not applicable:

… [T]here are three ways in which a court could amend its SORA determination…. First, a party may move for leave to renew. A court may grant a motion for leave to renew only where (1) the motion alleges new facts and (2) the movant provides reasonable justification for not offering those facts in the original proceedings (CPLR 2221[e][2], [3]; …). The court has discretion to determine what constitutes a reasonable justification … and to relax the requirements of CPLR 2221(e) in the interest of justice … . * * *

Second, a court has an inherent authority to reopen a hearing “to correct its own order to rectify a mistake of law or fact” on a SORA decision … . This inherent authority stems from the “overriding purposes and objectives of SORA” to, inter alia, “protect [] vulnerable populations and . . . the public from potential harm” …. .

Here, the motion court could not have acted based on its inherent authority because the motion court did not make a mistake in its initial decision … . * * *

Third, a new hearing can be ordered to give the People an opportunity to make an application for an upward modification where the People refrained from making that argument when the motion court assessed points which resulted in the defendant being assigned presumptively to the level sought by the People … . * * *

Here, the motion court properly gave the People time to respond to defendant’s assertions and the People chose to introduce the new materials only belatedly.  People v Adams, 2023 NY Slip Op 04490, First Dept 9-7-23

Practice Point: The three ways a SORA motion court can amend a risk-level determination are described in detail. None were applicable here.

 

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THE STATUTE PROHIBITING SEX OFFENDERS FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS AS APPLIED TO SEX OFFENDERS CONVICTED BEFORE THE STATUTE WENT INTO EFFECT DOES NOT VIOLATE THE EX POST FACTO CLAUSE; HERE PETITIONER WAS INCARCERATED PAST HIS PAROLE DATE BECAUSE HOUSING WHICH COMPLIED WITH THE SCHOOL GROUNDS LAW COULD NOT BE FOUND (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, three judges dissenting, determined the statute (Executive Law 259-c [14]) prohibiting sex offenders from being within 1000 feet of school grounds as applied to sex offenders who were convicted before the statute went into effect does not violate the Ex Post Facto Clause of the US Constitution. Here the application of the statute resulted in petitioner remaining incarcerated past his parole release date because housing which met the school-grounds requirement could not be found:

The United States Constitution’s Ex Post Facto Clause prohibits states from “retroactively alter[ing] the definition of crimes or increas[ing] the punishment for criminal acts” … . The ex post facto prohibition “applies only to penal statutes” and “where the challenged statute does not seek to impose a punishment, it does not run afoul of the Ex Post Facto Clause” … . * * *

We are unable to conclude from this record that prolonged incarceration is a common result of Executive Law § 259-c (14), rather than an idiosyncratic effect, and the Supreme Court has “expressly disapproved of evaluating the civil nature of [a statute] by reference to the effect that [statute] has on a single individual” … . Petitioner has failed to meet the heavy burden of demonstrating, by the clearest proof, that the effects of Executive Law § 259-c (14) are “so punitive . . . as to negate [the legislature’s] intention to deem it civil” … . People ex rel. Rivera v Superintendent, Woodbourne Corr. Facility, 2023 NY Slip Op 03299, CtApp 6-15-23

Practice Point: Here petitioner remained incarcerated past his parole release date because housing which complied with the school-grounds statute (prohibiting sex offenders from being within 1000 feet of school grounds) could not be found. Even though petitioner was convicted before the school-grounds statute was enacted, the majority concluded the statute does not violate the Ex Post Facto Clause. There were three dissenting judges.

 

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THE STATUTE PROHIBITING SEX OFFENDERS ON PAROLE FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS APPLIES TO YOUTHFUL OFFENDERS (CT APP). ​

The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Halligan, determined the statute prohibiting a sex offender on parole from being within 1000 feet of school grounds applies to youthful offenders:

The Sexual Assault Reform Act (SARA) imposes a mandatory restriction prohibiting a person who is “serving a sentence” for an enumerated offense against a minor victim and is released on parole from coming within 1,000 feet of school grounds (see Executive Law § 259-c [14] …). The question presented in this appeal is whether that restriction applies to youthful offenders. We hold that it does.

Petitioner pleaded guilty to the attempted second-degree rape of a 13-year-old victim … . Petitioner was 18 years old at the time of the offense and was adjudicated a youthful offender … . He was initially sentenced to a 10-year period of probation, but after violating the terms of his probation, he was resentenced to an indeterminate term of imprisonment. The Board of Parole granted petitioner an open date (that is, the earliest possible release date) of August 2018, subject to numerous conditions of release. As relevant here, petitioner was required to abide by SARA’s school grounds condition and thus would not be released until he identified a SARA-compliant residence. Unable to obtain suitable housing, petitioner remained imprisoned. * * *

The purpose of the school grounds condition is to bar offenders who pose the “highest risk to children” from entering school grounds … . Certainly, someone accorded youthful offender status can fall into this category. While we appreciate that the consequences of imposing the school grounds condition may be severe, the legislature has authorized the imposition of other long-term consequences, such as a lengthy probationary term, on youthful offenders … . And once the youthful offender serves their sentence, the school grounds condition is lifted and the youthful offender will receive the “fresh start” provided to them by statute … . People v Superintendent, Livingston Corr. Facility, 2023 NY Slip Op 03298, CtApp 6-15-23

Practice Point: The statute prohibiting sex offenders on parole from being within 1000 feet of school grounds applies to youthful offenders.

 

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DEFENDANT’S POSITIVE PERFORMANCE IN THE PRISON SEX OFFENDER TREATMENT AND EDUCATIONAL PROGRAMS, GIVEN THE SERIOUSNESS OF HIS OFFENSES, DID NOT WARRANT A DOWNWARD DEPARTURE FROM LEVEL THREE TO LEVEL TWO; TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, affirming the appellate division, over a two-justice dissent, determined defendant’s request for a downward departure in this SORA risk-level proceeding (level three to level two) was properly denied:

In 1988, defendant was convicted after trial of four counts of first-degree rape and four counts of first-degree sodomy, among other crimes, for raping or sexually assaulting five women in their homes at knifepoint during burglaries that occurred over the course of a year. In anticipation of defendant’s conditional release from imprisonment in 2020, the Board of Examiners of Sex Offenders assessed defendant 155 points on the risk assessment instrument (RAI), presumptively designating him a level three sexually violent offender for purposes of the Sex Offender Registration Act (SORA).

Defendant did not dispute the accuracy of the Board’s point assessment, but he requested that the court depart downward to risk level two. To that end, defendant argued that he did not present a high risk of sexual reoffense, as evidenced by his positive performance in sex offender treatment and educational programs while incarcerated (including obtaining his general equivalency diploma and college-level education credits), limited history of disciplinary infractions, age at time of release (51 years old), familial support, and his scores on two alternative risk assessment instruments. Defendant also asserted that he would be subject to supervision regardless of his risk designation as part of the terms of his conditional release, and that a level three designation would make it more difficult for him to locate housing. People v Anthony, 2023 NY Slip Op 03303, CtApp 6-15-23

Practice Point: Here defendant’s age (51) and positive performance in the prison sex offender treatment and educational programs, given the seriousness of his offenses, did not warrant a SORA risk-level downward departure from level three to level two. There was a strong two-judge dissent.

 

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ONCE THE APPELLATE DIVISION DETERMINED A SORA RISK FACTOR DID NOT APPLY, BRINGING DEFENDANT’S RISK ASSESSMENT FROM A LEVEL THREE TO A LEVEL TWO, THE APPELLATE COURT HAD THE AUTHORITY TO REMIT THE MATTER TO COUNTY COURT TO CONSIDER, FOR THE FIRST TIME, WHETHER AN UPWARD DEPARTURE WAS WARRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, determined that the appellate division appropriately remitted the matter to County Court after the appellate court reduced the risk assessment by 10 points because the People conceded the absence of forcible compulsion. Eliminating that 10 point assessment resulted in reducing defendant from a level three offender to a level two offender. The remittal was for the purpose of allowing County Court to consider an upward departure, which the court did not consider because defendant had been deemed a presumptive level three offender at the time of the SORA hearing:

Here, the People prevailed before the SORA court on their requested allocation of points under the RAI [risk assessment instrument] and risk level. When the Appellate Division reversed on the allocation of points and the risk level dropped accordingly, it remitted to allow the SORA court to consider a departure request for the first time. Defendant and our dissenting colleague object, contending that because this upward departure request was not made during the original SORA proceeding, the SORA court made no ruling “adverse” to the People, and the Appellate Division therefore could not “review” this “unpreserved” departure question and order remittal upon reversal. But this argument confuses the question of whether remittal was appropriate corrective action with a question of preservation … . This is not a case in which a party failed to present an issue to the SORA court and then asked the Appellate Division to nonetheless resolve that same question; the Appellate Division did not rule on the merits of the departure but remitted it for the SORA court to do so in the first instance … . * * *

Curbing the Appellate Division’s power to remit for consideration of departure requests when it disagrees with the hearing court’s point assessment and changes an offender’s presumptive risk level would undermine SORA’s objective and unduly constrain the Appellate Division’s authority to order appropriate remedial action.  People v Weber, 2023 NY Slip Op 03301, CtApp 6-15-23

Practice Point: Here in this SORA risk level proceeding, the appellate division appropriately remitted the matter to County Court to determine whether an upward departure was warranted. The appellate division had found a risk factor did not apply, reducing defendant’s risk level from three to two. County Court had not considered an upward departure in the original SORA proceeding because defendant’s presumptive risk level was already level three.

 

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EVEN THOUGH THE SORA RISK LEVEL CAME OUT THE SAME (115 POINTS), THE JUDGE SHOULD NOT HAVE FIRST REMOVED 15 POINTS WHICH WERE BASED ON AN INAPPLICABLE RISK FACTOR AND THEN ADDED 15 POINTS BASED ON A RISK FACTOR NOT INCLUDED IN THE RISK ASSESSMENT; THAT CONSTITUTED AN UPWARD DEPARTURE WITHOUT NOTICE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, with a three-judge concurrence, reversing the appellate division, determined the judge in the SORA risk-level proceeding should not have departed from the presumptive risk level based on an issue of which the defendant was not given 10 days notice. The risk assessment included 15 points for refusing sex offender treatment but it was clear defendant did not refuse treatment. Rather, he was prohibited from receiving the treatment because of his prison disciplinary history. The judge agreed the 15 points for refusing treatment should be removed, but then added 15 points based on the defendant’s disciplinary record, a risk factor which was not included in the Board’s risk assessment:

Here, the proceeding failed to comport with due process because defendant was provided no notice or meaningful opportunity to be heard in response to the District Attorney’s request for an upward departure first interposed during the SORA hearing in response to the court’s invitation. The Board recommended the court classify defendant as a level three offender based on his risk factor score of 115 points and did not recommend an upward departure or that the court consider defendant’s disciplinary history for purposes aside from a factor 13 point allocation. Although the District Attorney agreed with the Board that defendant should be classified as a level three risk, the District Attorney reached that conclusion not on the total point assessment contained in the RAI but rather on an independent basis that defendant’s disciplinary history was sufficiently egregious to warrant an upward departure. Once the District Attorney announced its deviation from the reasons supporting the Board’s proposed risk level classification, defendant was entitled to a sufficient opportunity to consider and muster evidence in opposition to the request for an upward departure. The record shows that the court decided the issue without an adjournment, without allowing defendant to present rebuttal arguments or collect additional evidence, and without any input from defense counsel. The court erred by proceeding in this manner.  People v Worley, 2023 NY Slip Op 03300, CtApp 6-15-23

Practice Point: Even where the total number of SORA risk level points remains unchanged from that recommended by the Board, the judge cannot remove one inapplicable risk factor and then add a risk factor not recommended by the Board without affording defendant 10 days notice and an opportunity to be heard.

 

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EVEN THOUGH THE NUMBER OF POINTS WAS REDUCED BY THE CHANGE IN THE FACTUAL BASIS FOR THE RISK ASSESSMENT FROM “ARMED WITH A DANGEROUS INSTRUMENT” (RECOMMENDED BY THE BOARD) TO “INFLICTED PERSONAL INJURY,” DEFENDANT WAS ENTITLED TO 10 DAYS NOTICE OF THE CHANGE (SECOND DEPT).

The Second Department, reversing Supreme Court in this SORA risk assessment proceeding, determined defendant was not given the required 10-day notice that the People would seek points under a risk factor that differed from the recommendation submitted by the the board. Here the board recommended a 30-point assessment under risk factor 1 for “armed with a dangerous instrument” but the court assessed 15 points for “inflicted personal injury.” The defendant was entitled to notice of that change, even though the number of points was reduced:

Correction Law § 168-n(3) provides that, “[i]f the district attorney seeks a determination that differs from the recommendation submitted by the board, at least ten days prior to the determination proceeding the district attorney shall provide to the court and the sex offender a statement setting forth the determinations sought by the district attorney together with the reasons for seeking such determinations” … , this Court held that the phrase “recommendation submitted by the board” is not limited to just the total points assessed or the recommended sex offender level designation, but “includes the factual predicate for the recommendation” … .

Here, the factual predicate for the Board’s recommendation for the assessment of points under risk factor 1 was the defendant having been “armed with a dangerous instrument,” not that he “inflicted physical injury.” In order to assess points under risk factor 1 based upon infliction of physical injury, the People were required by Correction Law § 168-n(3) to give the defendant the requisite 10-day notice, which they failed to do … . People v Green, 2023 NY Slip Op 02799, Second Dept 5-24-23

Practice Point: If the People seek a SORA risk assessment on a factual basis different from that recommended by the board, defendant is entitled to 10 days notice of the change, even if the change reduces the number of points to be assessed.

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO A LEVEL ONE BECAUSE HE HAD BEEN AT LIBERTY FOR 17 YEARS WITHOUT REOFFENDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled a downward departure to level one because he had been at liberty for 17 years without reoffending:

In light of the purpose of SORA, which is to assess the risk that the offender poses while at liberty, lengthy periods during which the defendant has been at liberty after the offense are significant in determining the risk of reoffense and the danger posed in the event of reoffense … . Since these periods are not taken into account in the risk assessment instrument, they are a permissible ground for departure … . Here, the defendant was released from prison for the underlying sex offense in 2002. In the time between his release and the SORA hearing, which was held in 2019, the defendant was at liberty for approximately 17 years without reoffending. In light of the lengthy amount of time without reoffense, we designate the defendant a level one sex offender … . People v Gurley, 2023 NY Slip Op 02686, Second Dept 5-17-23

Practice Point: Here the defendant was entitled to a downward departure to a level one sex offender because he had been at liberty for 17 years without reoffending.

 

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DEFENDANT’S “PROMOTING A SEXUAL PERFORMANCE BY A CHILD” CONVICTION WAS REVERSED ON THE LAW; THE DEFENDANT CANNOT BE CLASSIFIED AS A “SEX OFFENDER” (FOURTH DEPT).

The Fourth Department noted that if the underlying conviction has been reversed and the indictment dismissed it can no longer be the basis for classifying the defendant as a “sex offender:”

While this appeal was pending, this Court reversed the judgment convicting defendant of eight counts of promoting a sexual performance by a child as a sexually motivated felony (Penal Law §§ 130.91, 263.15) on the law and dismissed the indictment … .

A “sex offender” includes a person who is convicted of an offense described in Correction Law § 168-a (2) or (3). However “[a]ny [such] conviction set aside pursuant to law is not a conviction” for purposes of the statute (§ 168-a [1]; see § 168-d [1] [a]). Inasmuch as defendant’s judgment of conviction has been “set aside pursuant to law” (§ 168-a [1]) by reversal of this Court …, defendant does not qualify as a “sex offender” within the meaning of SORA, and the risk level determination must be vacated … . People v Congdon, 2023 NY Slip Op 02228, Fourth Dept 4-28-23

Practice Point: Where a sexual-offense conviction has been reversed on the law and the indictment dismissed, the defendant cannot be classified as a “sex offender.”

 

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