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Appealing Sex Offender Registration Act Determinations

SORA Risk Level Determinations

SORA requires individuals convicted of sex offenses to register with law enforcement officials and authorizes the dissemination of certain information about those individuals to vulnerable population and the public. The length of time that an offender must register may turn on the crime for which the offender was convicted or the offender’s previous criminal history. For example, since 2002, SORA has compelled a defendant convicted of a “sexually violent offense” to register at least annually for life ( Correction Law § 168 -h [2]; see Correction Law § 168 -a [3][a]; [7][b]; L. 2002, ch. 11, § 13). 4 The same is true of a predicate sex offender -a person who is convicted of a sex *571 offense or sexually violent offense after having previously been convicted of such an offense ( Correction Law § 168 -a [7] [c]; § 168 -h [2] ). But for others, the registration period depends on the risk level designation that is assigned at the SORA proceeding-level one, evidencing a low risk of reoffense, level two, a moderate risk, and level three, a high risk. Individuals determined to have the lowest risk of reoffense-level one offenders-are relieved of the duty to register after 20 years while level two and three offenders must register at least once each year for life ( Correction Law § 168 -h ).

 

SORA also contains community notification and disclosure provisions that vary depending on risk level

designation. As a result of the 2006 amendments to SORA, law enforcement agencies can disseminate

information relating to level one offenders to vulnerable populations and the public-just as they

are authorized to do with level two and three offenders, except that the statute authorizes release

of exact addresses only for level three offenders (see Correction Law § 168 -l [6] ). The public can obtain

information about level one offenders by calling a toll-free telephone number maintained by the Division

of Criminal Justice Services ( Correction Law § 168 – p [1] ); information relating to level two and three

offenders is also publically available on an Internet directory (see Correction Law § 168 -q [1] ).

A defendant’s risk level is adjudicated at a SORA hearing, which is civil in nature (see People v.

Windham, 10 N.Y.3d 801, 856 N.Y.S.2d 557, 886 N.E.2d 179 [2008]; Matter of North v. Board of

Examiners of Sex Offenders of State of N.Y., 8 N.Y.3d 745, 752, 840 N.Y.S.2d 307, 871 N.E.2d 1133

[2007] ). Correction Law § 168 -n (3) directs that “[t]he State shall appear by the district attorney … who

shall bear the burden of proving the facts supporting the determinations sought by clear and convincing

evidence” (see also Correction Law § 168 -d [3] ). In determining the appropriate risk level, “the 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]; see also Correction Law § 168 -d [3] ).

The Board of Examiners of Sex Offenders has explained that the information used to determine defendant’s risk level “can be derived from the sex offender’s admissions; the victim’s statements; the evaluative reports of the supervising probation officer, parole officer or corrections counselor; or from any other reliable source” (Board of Examiners of Sex Offenders , Sex Offender Registration Act : Risk Assessment

Guidelines and Commentary, General Principles ¶ 7, at 5 [2006] ). Beyond this, neither the Legislature nor

the Board of Examiners of Sex Offenders have further specified the types of evidentiary materials admissible in a SORA proceeding. But one thing is undisputedthe

Legislature did not limit the proof to what would be admissible at a civil or criminal trial.

Since the inception of SORA in 1995, a person convicted of a felony in another jurisdiction, including

conviction of a federal crime, has been subject to registration in New York if the foreign *749 offense

“includes all of the essential elements” of one of the New York offenses listed in SORA. In 1999, the Legislature added another basis for registration arising from a foreign conviction-an offender must register in New York if that person committed a felony subject to registration

in the foreign jurisdiction. SORA was again amended in 2002 to clarify that particular federal offenses are subject to New York’s registration requirement and the amendments removed the requirement that the foreign offense be a felony (subject to a potential death sentence or prison sentence of more than one year). In addition, the foreign conviction provision was reorganized into three subsections. As a result of this

legislative expansion, the definition of a registrable “sex offense” now includes “a conviction of (i) an offense in any other jurisdiction which includes all of the essential elements of any such crime provided for in paragraph (a), (b) or (c) of this subdivision or (ii) a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred or, (iii) any of the provisions of 18 U.S.C. 2251 , 18 U.S.C. 2251A , 18 U.S.C. 2252 , 18 U.S.C. 2252A , or 18 U.S.C. 2260 , provided that the elements of such crime of conviction are substantially the same as those which are a part of such offense as of the date on which this subparagraph takes effect” ( Correction

Law § 168 -a [2][d] ).

The “Risk Assessment Instrument” is a chart divided into four risk factors: current offense(s);

criminal history; post-offense behavior; and release environment (see, Correction Law § 168 -l ). Within

each of these factors, there are several specific issues that a probation officer must analyze, and depending

on whether defendant or his conduct exhibits certain characteristics, points are assigned. When totaled, the

points for all risk factors determine an individual’s presumptive SORA risk level, except that there are

certain “overrides” not relied on by the Probation Department here, which will result in the offender

being classified as a risk level three. According to the DPCA, the presumptive SORA risk level is reviewed

by another employee of DPCA or, as here, by one member of the Board of Examiners of Sex Offenders

before the final risk level determination is sent to the probationer.

The SORA Hearing

The People “bear the burden of proving the facts supporting the determinations” by clear and convincing evidence ( Correction Law § 168 -n ). According to the Board of Examiners of Sex Offenders , points in the RAI “should not be assessed for a factor … unless there is clear and convincing evidence of the existence of that factor” ( Sex Offender Registration Act : Risk Assessment Guidelines and Commentary, ¶ 7, at 5 [2006] ).

A defendant’s risk level is adjudicated at a SORA hearing, which is civil in nature. Correction Law § 168 -n (3) directs that “[t]he State shall appear by the district attorney … who shall bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence” (see also Correction Law § 168 -d [3] ). In determining the appropriate risk level, “the 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]; see also Correction Law § 168 -d [3] ).

The Board of Examiners of Sex Offenders has explained that the information used to determine defendant’s risk level “can be derived from the sex offender’s admissions; the victim’s statements; the evaluative reports of the supervising probation officer, parole officer or corrections counselor; or from any other reliable source” (Board of Examiners of Sex Offenders , Sex Offender Registration Act : Risk Assessment

Guidelines and Commentary, General Principles ¶ 7, at 5 [2006] ). Beyond this, neither the Legislature nor

the Board of Examiners of Sex Offenders have further specified the types of evidentiary materials admissible in a SORA proceeding. But one thing is undisputed the Legislature did not limit the proof to what would be admissible at a civil or criminal trial.

To determine a standard of admissibility for risk level determination hearings, we begin by reviewing

the evidence New York courts have consistently deemed reliable in SORA proceedings. The Appellate

Divisions have routinely upheld determinations based on information found in case summaries prepared

by the Board of Examiners of Sex Offenders and presentence reports prepared by a probation

department for use by sentencing courts.

The Board of Examiners of Sex Offenders is charged with producing accurate case summaries as an integral part of its functions and it has expertise culling through records to produce a concise statement of the factual information relevant to defendant’s risk of reoffense. Similarly, to assist the court in imposing an appropriate sentence, probation departments are charged with gathering a wide variety of information for inclusion in presentence reports that “may well be the single most important document at both the sentencing and correctional levels of the criminal process.

Of course, information found in a case summary or presentence report need not always be credited-it may be rejected when it is unduly speculative or its accuracy is undermined by other more compelling evidence. But

case summaries and presentence reports certainly meet the “reliable hearsay” standard for admissibility at

SORA proceedings.

Similarly, grand jury testimony has been deemed sufficiently trustworthy for SORA purposes (see e.g. People v. Imbert, 48 A.D.3d 297, 850 N.Y.S.2d 899 [1st Dept 2008] , lv. denied 10 N.Y.3d 714, 861 N.Y.S.2d 274, 891 N.E.2d 309 [2008]. Although not subject to cross-examination, this evidence is taken under oath, a significant, though not indispensable, indication of reliability. Other sworn documents have also been consistently accepted by SORA courts, including misdemeanor and felony complaints.

The Board’s commentary on its Guidelines makes clear that the risk level it calculates from point totals is

only “presumptive”: “the Board or court may depart from it if special circumstances warrant” (Guidelines

at 4). The commentary recognizes “that an objective instrument, no matter how well designed, will not fullycapture the nuances of every case” and that a departure from the presumptive risk level is warranted 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.

The court is free to depart from the presumptive risk level even if the Board does not recommend such

a departure. The statute is quite clear: the Board’s duty is to “make a recommendation to the sentencing

court” ( Correction Law § 168 -l [6] ) and the court, applying a clear and convincing evidence standard,

is to make its determination after considering that recommendation, and any other materials properly

before it ( Correction Law § 168 -n [3] ). While departures from the Board’s recommendations are of

course the exception, not the rule, the possibility of such departures has been generally recognized.

SORA And Due Process Of Law

The commonsense principle at the heart of the due process guarantees in the United States and New

York Constitutions is that when the State seeks to take life, liberty or property from an individual, the State must provide effective procedures that guard against an erroneous deprivation ( U.S. Const., Amend. XIV, People v. David W., 95 N.Y.2d 130 (2000) 733 N.E.2d 206, 711 N.Y.S.2d 134, 2000 N.Y. Slip Op. 05853 § 1 ; N.Y. Const., art. I, § 6.

Due process is a flexible concept that “generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The ramifications of being classified and having that information disseminated fall squarely within those cases that recognize a liberty interest where there is some stigma to one’s good name, reputation or integrity, coupled with some more “tangible” interest that is affected or a legal right that is altered . More than “name calling by public officials,” the sexually violent predator label “is a determination of status” that can have a considerable adverse impact on an individual’s ability to live in a community and obtain or maintain employment. Not only is one identified as a “sexually violent predator,” but also this information along with the individual’s name and “exact” address can be widely disseminated to and by any “entity with vulnerable populations related to the nature of the offense committed by such sex offender ” ( Correction Law § 168 -l [6][c] ).

Additionally, a level three sex offender must by photograph, description and exact address, along with other identifying information, appear in a “sexually violent predator subdirectory,” which is annually “distributed to the offices of local village, town, city, county or state law enforcement agency for purposes of public access.,” and is updated monthly ( Correction Law § 168 -q [1]; see, L. 1999, ch. 453, § 19). This information also appears in a telephone database accessible by a “900” telephone number ( Correction Law § 168 -p ).

Moreover, SORA places affirmative obligations on all sex offenders to register annually with local law enforcement and to promptly advise of changes in address ( Correction Law §§ 168 -f , 168 -j , 168 -k ). Those classified at risk level three must also register every 90 days.

The New York Court of Appeals has held that the mere likelihood of dissemination to prospective employers of allegations of rape and abuse in a fired public employee’s personnel file sufficiently impaired that employee’s liberty interest to warrant due process protections.