SORA Point Assessment And Prison Disciplinary Violations
People v Ford
25 N.Y.3d 939
New York Court of Appeals
Decided on March 26, 2015
Blog by: Stephen N. Preziosi Esq., Criminal Appeals Lawyer
The New York Court of Appeals holds that failing to participate in sex offender treatment must be intentional to trigger heightened point assessment under the Sex Offender Registration Act.
Issue: Whether a defendants prison disciplinary violations, which prevent him or her from attending treatment, can trigger an assessment of points under risk factor 12 of the Sex Offender Registration Act (SORA)?
Summary: Following a guilty plea for conviction for sexual abuse in the first degree, the Supreme Court, Kings County adjudicated defendant to be a level three sex offender under SORA. The Appellate Division, Second Department affirmed and defendant appealed. The Court of Appeals granted leave to appeal and then reversed.
Holding: The Court of Appeals held that defendants inability to participate in sex offender treatment due to his disciplinary violation was not tantamount to a refusal to participate in treatment required by the plain language of the SORA statute.
Facts: In January 2009, defendant entered a livery cab and requested that the female driver take him to a particular address in Brooklyn. While in the cab, defendant pointed a gun at the victim and stole her money and wallet. Defendant then demanded that she pull her pants down, and after the victim complied, defendant inserted two of his fingers into her vagina. Defendant pleaded guilty to sexual abuse in the first degree and was sentenced to a determinate term of three years imprisonment and five years of post-release supervision. While imprisoned, defendant committed 16 tier II and 4 tier III disciplinary violations. As a consequence of the disciplinary penalties, defendants violations prevented him from participating in any sex offender treatment while incarcerated.
In anticipation of defendants SORA hearing, the Board prepared a Risk Assessment Instrument (RAI) assessing defendant a total of 100 points, making him a presumptive level two sex offender. As relevant here, the Board assessed 10 points under risk factor 13 for unsatisfactory conduct while confined. However, the Board did not assess any points for post-offense behavior under risk factor 12. The Board recommended an upward departure to level three based on the violent and opportunistic nature of defendants crime, his failure to participate in sex offender treatment, and his lack of remorse for the crime.
The trial court questioned whether defendant should have been assessed points under failure to accept responsibility because his multiple prison violations prevented him from participating in sex offender treatment. The People then urged that the court assess points under risk factor 12 or grant an upward departure. Defendant objected to the assessment of points and opposed an upward departure. Ultimately, the court assessed 15 points for failure to accept responsibility, reasoning that defendant put himself into a situation where he ends up in special housing and, therefore, [could not] receive treatment. The court, however, determined that the People failed to meet their burden for an upward departure. With the additional 15 points under risk factor 12, defendant was adjudicated a level three sex offender. The Appellate Division affirmed stating that Supreme Court properly considered … defendants lengthy disciplinary record while incarcerated, which prevented him from participating in a sex offender treatment program, as evidence of a refusal of treatment. The Court of Appeals granted leave to appeal and then reversed holding that defendants ability to participate in sex offender treatment due to his disciplinary violation was not tantamount to a refusal to participate in treatment.
Legal Analysis: The question of first impression was whether a defendants prison disciplinary violations, which prevent him or her from attending treatment, can trigger an assessment of points under risk factor 12. To answer this question, the Court of Appeals started with the SORA guidelines which provide:
An offender who does not accept responsibility for his [or her] conduct or minimizes what occurred is a poor prospect for rehabilitation. Such acknowledgment is critical, since an offenders ability to identify and modify the thoughts and behaviors that are proximal to his [or her] sexual misconduct is often a prerequisite to stopping that misconduct.
Interpreting the statute, the bench opined that calculating an offenders risk level for post-offense behavior, 15 points are added under risk factor 12 if an offender has refused or been expelled from treatment since such conduct is powerful evidence of the offenders continued denial and his [or her] unwillingness to alter his [or her] behavior. Alternatively, the Board may assess an offender 10 points under risk factor 12 for failure to accept responsibility based on other facts indicating the defendants lack of remorse.
Here, defendant certainly had a substantial number of disciplinary violations. However, his inability to participate in sex offender treatment due to his disciplinary violations was not tantamount to a refusal to participate in treatment under the SORA Guidelines. Refusal contemplates an intentional explicit rejection of what is being offered. There is no indication here that defendant explicitly refused treatment. Conduct that places a defendant in a position where he or she could not receive treatment is not equal to refusal to participate in treatment. Inferring refusal from a defendants disciplinary record is not supported by the Guidelines, which state that points should be assessed where a defendant refuses treatment or is expelled from treatment. Accordingly, the Supreme Court erred as a matter of law in determining that defendants disciplinary violations were tantamount to a refusal to participate in sex offender treatment. Therefore, the majority court reversed and remitted the case to allow the trial court for a hearing to designate defendants risk level without the assessment of 15 points under risk factor 12 for refusal to participate in treatment.