Correction Law § 168-q(1)

A Bronx Criminal Lawyer said that, on June 11, 1996, defendant pleaded guilty to attempted murder in the second degree, admitting that on September 11, 1993 he raped a woman and repeatedly stabbed her in the chest. While defendant was incarcerated, his DNA was found to match the DNA developed from a semen sample collected from another rape victim on August 29, 1993, and defendant was indicted for that crime, which was committed while he was on parole after a 1990 conviction for robbery in the second degree. On June 25, 2003, defendant pleaded guilty to rape in the first degree and sodomy in the first degree. On September 16, 2003, he was sentenced, as a second violent felony offender (based on the robbery conviction), to 7 to 14 years, to run concurrently with the sentence on the attempted murder conviction.1

A Bronx Sex Crimes Lawyer said that, before his conditional release date, the Board of Examiners of Sex Offenders (Board) prepared a case summary and risk assessment instrument (RAI) that assessed a total score of 170 points for various risk factors, which placed defendant presumptively in risk level three under SORA. The Board also recommended that defendant be designated a sexually violent offender based on his first-degree rape and sodomy convictions. Defendant then moved to be classified at a lower risk level and to find SORA unconstitutional on its face and as applied to him. On April 1, 2010, after a hearing, defendant was designated a level three sexually violent offender under SORA.

A Bronx Sex Crime Lawyer said that, defendant appeals from the order of the Supreme Court, Bronx County, entered on or about April 1, 2010, which adjudicated him a level three sexually violent offender pursuant to the Sex Offender Registration Act.

The issue in this case is whether amendments made to the Sex Offender Registration Act (SORA) since 1996, that, among other things, impose more stringent registration and notice requirements for convicted sex offenders, have rendered the act a punitive statute, so that its retroactive application to defendant violates the Ex Post Facto Clause or the state and federal constitutional prohibition against double jeopardy.

SORA, effective January 21, 1996, imposes registration requirements on “sex offenders,'” i.e., “any person who is convicted of” certain sex offenses enumerated in the statute. The act “applies to sex offenders incarcerated or on parole or probation on its effective date, as well as to those sentenced thereafter, thereby imposing its obligations on many persons whose crimes were committed prior to the effective date”.

In one case, the Second Circuit held that the retroactive application of SORA did not violate the Ex Post Facto Clause because the statute was intended to further the non-punitive goals of protecting the public and enhancing law enforcement authorities’ ability to investigate and prosecute future sex crimes, and neither SORA’s public notification requirements nor its registration requirements were so punitive in form and effect as to negate the Legislature’s non-punitive intent -. Defendant argues that SORA has been amended so significantly since Doe that it is now a punitive statute, and that its retroactive application to him violates the Ex Post Facto Clause and the state and federal constitutional prohibition against double jeopardy.

States are prohibited from enacting an ex post facto law, i.e., a law that “retroactively alters the definition of crimes or increases the punishment for criminal acts”. “A statute will be considered an ex post facto law if it punishes as a crime an act previously committed, which was innocent when done,’ makes more burdensome the punishment for a crime, after its commission,’ or deprives one charged with crime of any defense available according to law at the time when the act was committed'”

In determining whether a statute renders the punishment for a crime more burdensome for purposes of the Ex Post Facto Clause, the United States Supreme Court has implemented an intent- effects test. Under the first prong of this test, the court determines whether the Legislature intended the statute to be punitive or civil in nature. If the court finds that the Legislature intended the statute to be punitive, then its retroactive application violates the Ex Post Facto Clause.

Notwithstanding numerous amendments to the statute since Doe v Pataki, the Court of Appeals has consistently held that SORA, ” is not a penal statute and the registration requirement is not a criminal sentence. Rather than imposing punishment for a past crime, SORA is a remedial statute intended to prevent future crime'”. Accordingly, because the Legislature intended the statute to be regulatory. Because deference is due to a legislature’s stated intent, “only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty”.

As applied to SORA, our evaluation of these factors leads to the conclusion that the post amendments on which defendant relies were aimed at improving the strength, efficiency and effectiveness of SORA as a civil statute, not at punishing sex offenders, and are not so punitive in effect as to negate the Legislature’s intent.

Defendant argues that the effect of SORA is now punitive because the amended registration and notification requirements are significantly broader than those upheld in the said case, and the right to petition for relief has been drastically limited. Particularly, whereas most offenders were originally required to register for 10 years, those designated level one must now register for 20 years and those designated level two and level three must now register for life . Lifetime registration is also imposed on “sexual predators,” “sexually violent offenders,” and “predicate sex offenders,” regardless of their risk level. Only a level two offender who is not a sexual predator, sexually violent offender or predicate sex offender may apply for relief from lifetime registration.

Level one and two offenders may still register by mail in general, but every three years they must appear in person at the local police station to have a new photo taken; level three offenders and sexual predators are required to update their photographs annually and to personally verify their addresses with the law enforcement agency having jurisdiction every 90 days. The identity and other information regarding all level two and three offenders must be made available on the Internet. The first failure to report is an E felony, and any subsequent failure a D felony.

These increased registration and reporting requirements are not excessive in relation to the public safety purpose of the statute and do not transform SORA into an additional statutory penalty. Although lifetime registration and Internet notification may have deterrent effects and promote community condemnation of offenders, they serve a valid regulatory function by providing the public with information related to community safety.

Defendant contends that Correction Law § 168-q(1), which requires that a subdirectory of all level two and level three offenders that includes their name, age, photo, home address, work address, crime, modus of operation, type of victim targeted, and any college or university in which they are enrolled “be made available at all times on the internet via the homepage,” is now punitive because the information is unrestrictedly available to anyone with computer access. The Court explained that [the stigma. results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. To hold that the mere presence of a deterrent purpose renders such sanctions criminal would severely undermine the Government’s ability to engage in effective regulation”.

Defendant also argues that SORA is more punitive because it directs DCJS to provide the registry to the Department of Health and Department of Financial Services to make registrants ineligible to receive reimbursement or coverage for a certain drug, procedures or supplies, to release the registry to Internet providers, who may restrict or remove them from their services, and to inform the housing authorities “at least monthly” of the home address of any level two or three offender “within the corresponding municipality”. However, SORA merely requires that information about sex offenders be provided to other agencies, so that they may comply with certain provisions of the Public Health Law, Social Services Law, Elder Law, and Insurance Law. This may be a disability, but it remains connected to protecting the public rather than punishing the offender.

It may be true that subjecting sex offenders to lifetime registration and notification requirements, with their attendant obligations and restrictions, increases the difficulties and embarrassment a sex offender may endure, even where he has led a law-abiding life since his conviction. However, in assessing the constitutionality of a statute, this Court does not review the merits or wisdom of the Legislature’s decisions on matters of public policy.

Accordingly, SORA, which is not punitive in nature, does not violate the Ex Post Facto Clause of the Federal Constitution.

The Double Jeopardy Clause of the Fifth Amendment of the US Constitution and Article I of the New York State Constitution protect persons against being punished more than once for the same crime. The claim that SORA is penal in nature and violates the prohibition against double jeopardy was raised and rejected by the Third and Fourth Departments after numerous amendments to SORA went into effect. We too reject it.

In the instant case, the court sufficiently “weighed the RAI against the defense evidence and arguments” and correctly adjudicated defendant a level three offender. The court opted to rely on the RAI only as a starting point and only after hearing oral argument from defendant at a separate hearing regarding the reliability of the Static 99-R versus the RAI. Defendant was given ample opportunity to argue his case both at that hearing and at the SORA hearing, and the court reviewed his extensive submissions.

Although our analysis differs somewhat from that of the court, we find that the People met their burden of establishing, by clear and convincing evidence, risk factors bearing a total score of 140 points, which supports a level three adjudication. The court should not have assessed 10 points on the RAI for the victim involved in the earlier offense. The Guidelines provide a category to assess the “number and nature of prior crimes,” and defendant was assessed 30 points on the RAI for a prior violent sex crime, which sufficiently takes into account the victim of the earlier crime.

It was also error to assess 20 points for the age of one victim. While sworn grand jury testimony is generally reliable, in this case, the testifying victim not only failed to state the basis of her knowledge of the other victim’s age, but stated equivocally, 10 years after the offense, that she was “about 16.” As this does not amount to clear and convincing evidence of the victim’s age, 20 points should not have been assessed.

Accordingly, the order of the Supreme Court, Bronx County, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act, should be affirmed, without costs.

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