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BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT A REGISTRABLE OFFENSE UNDER SORA; THE JUDGMENT REQUIRING DEFENDANT TO REGISTER AS A SEX OFFENDER VACATED (THIRD DEPT).

The Third Department determined burglary as a sexually motivated felony is not a registrable offense under SORA:

… [W]e agree with defendant, as well as the People’s concession, that burglary in the second degree as a sexually motivated felony is not a registerable offense under SORA because it is not expressly identified as a “[s]ex offense” pursuant to Correction Law § 168-a (2) (a) … .

… [T]he judgment is modified, on the law, by vacating the provisions thereof certifying defendant as a sex offender pursuant to the Sex Offender Registration Act and requiring him to register as a sex offender and pay the related sex offender registration fee … . People v Vakhoula, 2023 NY Slip Op 02034, Third Dept 4-20-23

Practice Point: Burglary as a sexually motivated felony is not a registrable offense under SORA. Conviction does not require registration as a sex offender.

 

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A SEX OFFENDER MAY PETITION ANNUALLY FOR A MODIFICATION OF THE RISK LEVEL CLASSIFICATION; SUCH A PETITION IS NOT PRECLUDED BY PRIOR PETITIONS WITHIN A YEAR SEEKING OTHER RELIEF UNDER THE CORRECTION LAW (SECOND DEPT), ​

​The Second Department, reversing Supreme Court, noted that a sex offender can petition annually for a modification of the risk level classification, notwithstanding prior petitions within a year seeking other relief:

… [T]he petition … sought a downward modification of the defendant’s risk level classification. Pursuant to Correction Law § 168-o(2), any sex offender required to register or verify under SORA may petition annually for modification of his or her risk level classification … . As the defendant had not petitioned for a modification of his risk level classification within the prior year, he was not procedurally barred from seeking such relief in the instant petition. Therefore, upon receipt of the petition, the court should have followed the procedures set forth in Correction Law § 168-o(4) and conducted a hearing on the petition. People v Ghose, 2023 NY Slip Op 02021, Second Dept 4-19-23

Practice Point: A sex offender may petition annually for a modification of the risk level classification. Such a petition is not precluded by prior petitions within a year seeking other relief under the Correction Law.

 

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THE PROVISION OF MENTAL HYGIENE LAW SECTION 10 THAT ALLOWS A COURT TO DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE PETITIONER, WHO HAD BEEN RELEASED TO A STRICT AND INTENSIVE SUPERVISION AND TREATEMENT (SIST) REGIMEN, IS A DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT IS NOT UNCONSTITUTIONAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this habeas corpus proceeding, determined the “provision of Mental Hygiene Law § 10.11(d)(4) that directs the court to determine whether there is probable cause to believe that a respondent in a proceeding pursuant to Mental Hygiene Law article 10 is a dangerous sex offender requiring confinement based upon a review of the allegations in a petition for confinement and any accompanying papers does not violate that respondent’s federal or state rights to due process.” The court further determined the issue raised here might recur so the appeal was not rendered moot by the petitioner’s release “to a regimen of strict and intensive supervision and treatment (… SIST):

Mental Hygiene Law § 10.11 permits the court to revoke a regimen of SIST upon a violation of SIST conditions and sets forth the required procedures for such a revocation … . The statute provides, as relevant here, that if a parole officer has “reasonable cause to believe” that a sex offender requiring SIST has violated a condition thereof, the offender can be taken into custody for five days for an evaluation by a psychiatric examiner, and the attorney general and the Mental Hygiene Legal Service (hereinafter MHLS) are to be promptly notified … . The attorney general may then file a petition for confinement within five days after the offender is taken into custody, which petition must be served promptly on MHLS, and counsel must be appointed for the offender … . If a petition for confinement is filed, “the court shall promptly review the petition and, based on the allegations in the petition and any accompanying papers, determine whether there is probable cause to believe that the [offender] is a dangerous sex offender requiring confinement” … . There is no provision permitting the offender an opportunity to be heard prior to the probable cause determination. Once the probable cause determination is made, the offender may be retained pending the conclusion of the proceeding … . “Within thirty days after a petition for confinement is filed . . . , the court shall conduct a hearing” to make a final determination, but the failure to commence the hearing within that time period does not result in dismissal of the petition or “affect the validity of the hearing or the determination” … . People ex rel. Neville v Toulon, 2023 NY Slip Op 02015, Second Dept 4-19-23

Practice Point; The provision of Mental Hygiene Law section 10 that allows a court to determine whether there is probable cause to believe petitioner, who had been released to a SIST regimen, is a dangerous sex offender requiring confinement is not unconstitutional.

Practice Point: Although at the time of this appeal in this habeas corpus proceeding petitioner had been released to a SIST regimen, the issue is likely to recur so the “exception to the mootness doctrine” doctrine was invoked.

 

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DEFENDANT’S ATTORNEY ESSENTIALLY FAILED TO TAKE ANY POSITION ON THE SORA RISK ASSESSMENT; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new SORA hearing, determined defendant did not receive effective assistance of counsel:

“A sex offender facing risk level classification under SORA has a right to the effective assistance of counsel” … . Here, the defendant’s counsel failed to provide “meaningful representation” … , as he “failed to litigate any aspect of the adjudication” … , essentially declining to take any position on the matter. People v Motta, 2023 NY Slip Op 01908, Second Dept, 4-12-23

Practice Point: A defense attorney who fails to take a position in the SORA risk-assessment proceedings does not provide effective assistance of counsel.

 

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BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT AN ENUMERATED OFFENSE UNDER SORA, THEREFORE DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER; THE WAIVER OF APPEAL WAS INVALID (THIRD DEPT).

The Third Department determined defendant was not required to register as a sex offender because the offense to which he pled guilty, burglary as a sexually motivated felony, is not one of offenses to which SORA applies. In addition, the Third Department held defendant’s waiver of appeal was invalid:

… [W]e agree with the analysis of our colleagues in the First and Second Departments concluding that registerable offenses subject to SORA are, by application of the clear statutory text, limited to those crimes expressly identified as “[s]ex offense[s]” pursuant to Correction Law § 168-a (2) … . As burglary in the third degree as a sexually motivated felony is not among the offenses enumerated therein, we agree that defendant was improperly required to register as a sex offender pursuant to SORA … . …

During the plea colloquy, County Court did not explain that certain appellate rights would survive the waiver of appeal and instead improperly described the rights to be waived as encompassing “any argument” that defendant might take to a higher court … . The written waiver, in turn, states that “[i]t is [defendant’s] understanding and intention that [his] plea agreement and sentence will be a complete and final disposition of this case.” Although the written appeal waiver also includes qualifying language limiting its application “to all legal issues that can be waived under the law[,]” and the court confirmed that defendant had discussed the waiver with counsel … , we find that the “totality of the circumstances” presented here fails to confirm that defendant understood that some appellate review would survive the waiver … . People v Winter, 2023 NY Slip Op 01820, Third Dept 4-6-23

Practice Point: A defendant may not be required to register as a sex offender if convicted of a crime not listed in the Correction Law. Burglary as a sexually motivated felony is not listed.

Practice Point: The failure to inform the defendant that, despite the waiver of appeal, certain issues remain appealable, renders the waiver of appeal invalid.

 

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20 POINTS SHOULD NOT HAVE BEEN ASSESSED UNDER RISK FACTOR 7 (RELATIONSHIP WITH THE VICTIM) BECAUSE THE VICTIM WAS NOT A STRANGER; ALTHOUGH SUBTRACTING 20 POINTS WOULD RESULT IN A LEVEL TWO SEX OFFENDER CLASSIFICATION, THE MATTER WAS SENT BACK BECAUSE THE PEOPLE INDICATED IF DEFENDANT WAS NOT DESIGNATED A LEVEL THREE OFFENDER THEY WOULD SEEK AN UPWARD DEPARTURE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined 20 points should not have been assessed under risk factor 7 (relationship with the victim) because the victim and defendant were not strangers. The People conceded there was a familial relationship:

Supreme Court improperly assessed 20 points under risk factor 7 (relationship with victim), since the People failed to establish by clear and convincing evidence that the defendant and the victim were strangers to each other … . To the contrary, the People conceded that the defendant and the victim had a familial relation, which is “specifically excluded by the Commentary and by the plain language of the Guidelines” with respect to risk factor 7 … .

Thus, 20 points must be deducted from the total risk assessment of 120 points, which places the defendant’s point score within the range of a level two sexually violent offender. Nevertheless, since the record of the SORA hearing reflects that the People would have sought an upward departure had the Supreme Court not designated the defendant a level three sexually violent offender, we remit the matter … to determine whether an upward departure is warranted and for a new determination of the defendant’s risk level … .  People v Perez, 2023 NY Slip Op 01108, Second Dept 3-1-23

Practice Point: Defendant should not have been assessed 20 points under risk factor 7 because the victim was not a stranger. Subtracting 20 points designated defendant a level two sex offender. Because the People indicated they would seek an upward departure if defendant was not designated a level three offender, the matter was remitted.

 

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DEFENDANT WAS NOT GIVEN THE REQUIRED 20-DAY NOTICE OF THE SORA RISK LEVEL HEARING, A VIOLATION OF DUE PROCESS; ALTHOUGH DEFENDANT DID NOT APPEAR AT THE HEARING, HE CAN APPEAL THE UPWARD DEPARTURE TO LEVEL THREE (THIRD DEPT).

The Third Department, reversing County Court, determined petitioner could appeal the 2006 level three sex offender risk level classification, despite his failure to appear at the hearing, because he was not given 20-days notice prior to the hearing:

Although the hearing took place on June 25, 2003, defendant was only advised of it in a letter dated June 11, 2003.Accordingly, defendant’s due process rights were violated given that he was not afforded the minimum 20-day notice as required by statute … . The People respond that defendant explained in a letter sent after the June 2003 hearing that he chose not to attend that hearing because he did not think he would be classified at risk level three. This letter, however, postdated the hearing and any explanation made therein does not amount to a waiver of the right to appear at the hearing. Furthermore, defendant’s posthearing explanation does not obviate the notice requirements that defendant must be statutorily given prior to the hearing. People v Lockrow, 2023 NY Slip Op 01030, Third Dept 2-23-23

Practice Point: Here defendant was not given the required 20-day notice of the upcoming SORA risk level hearing, which violated his due process rights. He therefore could appeal the upward departure to level three.

 

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THE CORRECTION LAW REQUIRING A SEX OFFENDER TO VERIFY HIS OR HER ADDRESS EVERY NINETY DAYS IS VOID FOR VAGUENESS AS APPLIED TO HOMELESS SEX OFFENDERS (FIRST DEPT). ​

The First Department, vacating defendant’s guilty pleas, in a full-fledged opinion by Justice Renwick, determined the Correction-Law requirement that a sex offender verify his or her address every 90 days is void for vagueness as applied to homeless sex offenders:

… [T]he question is whether the reporting requirements of Correction Law § 168-f(3) provided sufficient notice to defendant of what conduct was mandated by the statute when he left his previous residence address, a homeless shelter, but possessed no new permanent or temporary residence with an address. According to its plain language, Correction Law § 168-f(3) mandates that offenders register a change of residence by providing a specific new “address.” The statute, however, contains no objective standard or guidelines that would put homeless sex offenders without an address on notice of what conduct is required of them. Under these circumstances, such transient offenders can only guess at what is meant by the requirement that they register their new “address.” Similarly, the change of address reporting requirement fails to provide even minimal guidelines for the registering authorities in these regards, thus encouraging arbitrary enforcement. People v Allen, 2023 NY Slip Op 00496, First Dept 2-2-23

Practice Point: The Correction Law requiring a sex offender to verify his or her address every ninety days is void for vagueness as applied to homeless sex offenders.

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO LEVEL ONE; THE PRIOR RAPE (THE JUSTIFICATION FOR COUNTY COURT’S LEVEL THREE DESIGNATION) STEMMED FROM AN ONGOING RELATIONSHIP WITH THE VICTIM WHO WAS UNABLE TO CONSENT SOLELY BECAUSE OF HER AGE (SECOND DEPT).

The Second Department, reversing County Court, determined defendant was entitled to a downward departure to a level one sex offender designation. County Court had designated defendant a lever three offender because of a prior rape-third conviction. The rape-third conviction was based solely on the victim’s inability to consent due to her age. The defendant and the victim had been in a long-term relationship:

… [T]he unusual circumstances established by the defendant … are not accounted for by the Guidelines and tend to demonstrate a lower likelihood of reoffense and danger to the community. With respect to the first felony conviction serving as a predicate for the override, rape in the third degree, the People acknowledged that the victim’s lack of consent was solely by reason of inability to consent because of her age. Further, the record reflects that conduct underlying this crime was an ongoing relationship between the defendant and the victim. During this relationship, a video depicting sexual conduct between the defendant and the victim was taken. This video, depicting the same conduct for which the defendant was convicted of rape in the third degree and designated a level one sex offender, was discovered by a probation officer approximately a year later, and served as the basis for the defendant’s second sex-related felony conviction, possessing a sexual performance by a child. People v Hernandez, 2023 NY Slip Op 00451, Second Dept 2-1-23

Practice Point: Here defendant was entitled to a downward departure to a level one sex offender designation. The rape which County Court relied on for a level three designation stemmed from an ongoing relationship with the victim who was unable to consent solely because of her age.

 

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IF A DEFENDANT IS CONVICTED OF A FELONY IN A FOREIGN JURISDICTION WHICH REQUIRES THE DEFENDANT TO REGISTER AS A SEX OFFENDER, THE DEFENDANT WILL BE DESIGNATED A SEXUALLY VIOLENT OFFENDER IN NEW YORK EVEN IF THE FOREIGN FELONY DID NOT INVOLVE VIOLENCE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a dissent, determined a defendant who has been convicted in a foreign jurisdiction of a felony for which the defendant was required to register as a sex offender must be designated a sexually violent offender in New York, even if the foreign offense did not involve violence:

The statutory language is clear and unambiguous: “a felony in any other jurisdiction for which the offender is required to register as a sex offender” therein is, under subdivision (3), a “sexually violent offense” … . “As a general rule, unambiguous language of a statute is alone determinative” … . * * *

Defendant—and the many learned judges, lawyers, and legal scholars—may well be correct that subdivision (3) (b)’s foreign jurisdiction clause contains a legislative drafting error, but that does not give the courts license to ignore it. Courts must not “legislate under the guise of interpretation” … . If we were to take it upon ourselves to delete subdivision (3) (b)’s foreign registration clause as the Committee suggested the legislature should do, we would be impinging on the province of the legislature … . Thus, we are constrained to construe subdivision (3) (b)’s foreign registration clause according to its plain language. If the legislature did err, we unequivocally call upon it to remedy that error … . People v Talluto, 2022 NY Slip Op 07025, CtApp 12-13-22

Practice Point: If a defendant has been convicted of a felony in another state which requires the defendant to register as a sex offender in that state, the defendant will be designated a sexually violent offender in New York, even if the out-of-state conviction did not involve violence.

 

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