Nys sex offender risk level hearings

The People countered that the defendant had failed to meet his "clear and convincing" burden of providing facts in support of his modification petition.

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Specifically, the People asserted that the defendant had refused to participate in a sex offender treatment program while incarcerated and no information about a subsequent sex offender treatment program had been submitted. In fact, according to the People, the defendant did not acknowledge responsibility for the crimes.

The People maintained, "[t]he fact that the defendant is older and has health issues does not mitigate his risk level to the community because the defendant never did any sex-offender treatment whatsoever. The People asked that the Board's letter be considered by the Supreme Court. In response, defense counsel indicated that the defendant "did take sex offender counseling in prison, but he was released prior to being able to complete it.

Is there any reason he waited then to enroll in a Sex Offender Treatment Program, counsel?

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In an order dated May 13, , the Supreme Court denied the defendant's petition in its entirety. In relevant part, the court found:. On appeal, the defendant argues that the Supreme Court "abused its discretion" when it refused to modify his registration notification level in light of the fact that he was 1 a 71 year-old man, 2 at liberty for more than a decade without committing any additional crimes, 3 in compliance with his registration requirements, and 4 in ailing and poor health.

In that regard, they contend that the defendant failed to prove, by clear and convincing evidence, that a modification of his sex offender risk level was warranted.

In reply, the defendant argues that he is entitled to an appeal. He urges this Court to reverse for the reasons stated in his main brief. It requires individuals convicted of certain listed sex offenses to register with law enforcement officials, and it authorizes those officials, in some instances, to notify the public of, or provide the public with access to, the identity, whereabouts, and backgrounds of those individuals.

Thus, that court determined that the application of these measures to individuals who committed their crimes before SORA was passed violated the Ex Post Facto Clause of the United States Constitution see id.


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The court then preliminarily enjoined the enforcement of the public notification provisions of SORA see id. It remanded the matter to the Southern District.

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Upon remand, the Southern District considered the question of what procedural due process protections were required in the context of SORA. That court held, among other things, that community notification of convicted sex offenders implicated a protected liberty interest, and this entitled the offenders to procedural due process see Doe v Pataki , 3 F Supp 2d , [SD NY].

The court then discussed the procedures required to satisfy due process, as follows: 1 a hearing; 2 notice of the classification proceeding; 3 a statement of the proceeding's purpose and the Board's recommended risk level classification; 4 a right to representation by counsel; 5 pre-hearing discovery of the evidence on which the Board's risk level recommendation is based; 6 a burden on the state to prove the facts supporting each risk factor upon which the risk level assessment is based by clear and convincing evidence; and 7 a right to appeal his risk level determination see id. According to the "Budget Report on Bills" prepared by the Senate sponsor, the purpose of the amendment, inter alia, was "to bring the State into compliance with Federal sex offender laws and requirements" and to "avoid a Federal funding penalty associated with non-compliance" Senate Introducer's Mem, Bill Jacket, , SB , ch The bill passed both houses of the legislature.

In a Memorandum to James M.

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Similarly, in a letter dated August 18, , from Kenneth J. McGuire, Connolly stated that "[t]hese amendments are necessary to ensure that New York State law complies with federal requirements relating to sex offender registration" Letter from Div of Crim Just Servs, Aug. Connolly further stated that "[t]he absence of an appeal mechanism in the current law also has been held to violate due process" id. He noted "[t]his bill cures those deficiencies by establishing a clearly defined procedure to provide offenders with notice, an opportunity to be heard, codifies the right, by either party, to appeal from a risk level determination and provides for the assignment of counsel for offenders who are unable to afford an attorney" id.

In their brief, the People suggest that the reason "might well be" that the parties were already entitled to "as of right" appeals after the initial SORA hearing, and a denial of a modification petition would simply maintain the "status quo" in terms of an offender's risk level. They also note that a sex offender may bring a new petition for modification each year.

Risk Levels

We agree with the defendant. It determines what is appealable" Richard C. Pursuant to CPLR a 2 v , "[a]n appeal may be taken to the appellate division as of right in an action, originating in the supreme court or a county court:.


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  • The defendant argues that this reflects an "implicit" determination by each Appellate Division Department that defendants may appeal from the denials of these petitions. The People counter that no Appellate Division Department had been asked to consider, and thus, did not decide, whether an "as of right" appeal lies from such an order. In People v Tilley AD3d , the First Department stated, "[a]ssuming without deciding that the order is appealable, we find that the court properly exercised its discretion in denying any modification of [the] defendant's level three classification" id.

    He then took an appeal from that order in County Court. The County Court affirmed the City Court's order. He then took an appeal to the Appellate Division, Fourth Department, which stated:. The Court of Appeals stated that "[w]here the hearing court's findings, expressly made under the proper evidentiary standard, are affirmed by the Appellate Division, this Court's review is limited to whether the decisions below are affected by an error of law or are otherwise not supported by the record" People v Lashway , 25 NY3d at The Court of Appeals then concluded that the County Court had not abused its discretion and affirmed the order of the Appellate Division.

    Although it never addressed the issue of the defendant's right to take an appeal to the Appellate Division, the Court of Appeals considered the merits of the issues on that appeal. In the context of SORA, we have long recognized the significant impact upon the defendant's liberty interest. Based on the foregoing, we hold that a sex offender may appeal from an order denying a petition for a downward modification of his risk level.

    We decline the People's urging to close the doors of this Court to such appeals. After examining the facts in the particular case, including, but not limited to, the use of force, weapons, alcohol or drugs, victim's age, number of victims, assault or injury of the victim and relationship to the victim, the court makes a determination regarding the offender's level of notification, commonly called the risk level.

    Sex Offender Obligations

    The risk level is based on the court's assessment as to whether a particular offender is likely to repeat the same or similar registerable offense and the danger the offender poses to the community. Because the risk level reflects factors unique to a particular sex offender, offenders convicted of the same offense may receive different risk levels.

    The court may assign one of the following three risk levels. The risk level governs the amount and type of information which can be released as community notification. Note: In the interim period between registration and the risk level hearing, the offender's risk level may be referred to as "pending" and information about the offender may only be released in accordance with the standards for a low risk offender.

    Level 1 low risk of repeat offense , or Level 2 moderate risk of repeat offense , or Level 3 high risk of repeat offense and a threat to public safety exists.