A Queens Sex Crimes Lawyer said that, defendant is a convicted sex crime offender pursuant to Correction Law § 168-a having pled guilty on April 6, 1994, to one count of Attempted Rape in the First Degree, a lesser-included crime of Count I of the Indictment charging Rape in the First Degree under Penal Law § 130.35(3), commonly known as “statutory” rape. All other charges in the Indictment (one count of Sexual Abuse in the First Degree under PL § 130.65(3) and 2 counts of Endangering the Welfare of a Minor) are also based upon the age of the victim. There are no allegations of forcible compulsion per se. Defendant has challenged his proposed “moderate” risk level designation under the sex Offender Registration Act as not consistent with the facts of his case and his due process rights.
Defendant was arrested on March 5, 1993, and charged with Rape in the First Degree under Penal Law § 130.35(3), Sex Abuse in the First Degree, and Endangering the Welfare of a Child based upon the complaint of ten-year old victim who stated Defendant had removed her clothing, spread her legs, and placed his penis inside her vagina. He later gave her five dollars to keep secret what had happened. The Sex Abuse charge was dismissed upon a technical error in the Grand Jury presentation. Defendant was also charged in the same indictment with endangering the welfare of the child, age 15, who was photographed by Defendant, both with her consent and surreptitiously, in her underwear following her refusal of Defendant’s requests for “sexual contact.” There was no admission to this accusation although the minutes of Grand Jury testimony and one of the photographs submitted by the District Attorney do provide the necessary clear and convincing evidence that such incident took place.
A Queens Criminal Lawyer said that, defendant pled guilty before now-retired Justice to Attempted Rape in the First Degree with respect to the allegations concerning the victim. The then-58-year-old Defendant, a live-in friend of the victim’s grandmother with whom both the victims also resided, admitted he had “had sex” with the victim and knew she was “under eleven.” On April 18, 1994, Defendant was sentenced to one and a half to four and a half years incarceration. Defendant was released from prison on March 1, 1996. On May 12, 1997, Defendant appeared in response to notice and was appointed counsel. Challenging his recommended assessment at risk level 2, pursuant to Correction Law § 168-n(3), on August 25, 1997, Defendant requested a hearing. A full hearing was held on December 17, 1997.
A Queens Assault Lawyer said that, at hearing, the State offered the Risk Assessment Instrument for Defendant, the testimony of Board-member who prepared the Assessment Instrument, the Case Summary provided to the Court and, from the District Attorney, the Grand Jury minutes containing the testimony of the alleged second victim Gladys together with photocopies of some photographs, and Defendant’s allocution of April 6, 1994, in which he acknowledged he “had sex” with the victim knowing that she was under eleven. Defendant submitted the Board’s Risk Assessment Guidelines in effect at the time of Defendant’s evaluation, dated January 1996 (since amended), the Case Summary and attached Probation Pre-Sentence Report and Defendant’s Case History from the Division of Criminal Justice Services which was also used in his Board evaluation and which erroneously listed rape charges with forcible compulsion for the crimes at issue in this proceeding.
A Queens Criminal Lawyer said that, defendant takes issue with the allocation of ten points for forcible compulsion, noting that the charges were based exclusively on the age of the victim and contain no allegations of force. He also challenges the allocation of 20 points for two victims, noting that only the charge of Endangering the Welfare of a Minor relates to a separate victim, for which there was no admission or conviction. Defendant contends, moreover, that this sex crime is not one of those listed in the statute as a “sex offense” and should not, therefore, be considered in determining his risk level. Were Defendant to succeed in his arguments, he would become a level one offender according to the Board’s scheme of assessment.
The issue in this case is whether risk level assessment made by the Board is proper and reasonable.
The court in deciding the case said that, New York’s Sex Offender Registration Act, Correction Law § 168-a(3), defines a “sexually violent offense” as “a conviction of or a conviction for an attempt to commit any of the provisions of sections 130.35, 130.50, 130.65, 130.67 and 130.70 of the penal law.” A “sexually violent predator” is “a person convicted of a sexually violent offense, or a sex offender who suffers from a mental abnormality that makes such person likely to engage in predatory sexual conduct”. Given Defendant’s conviction for an attempt to violate Penal Law § 130.35, he clearly is defined by statute as a “sexually violent predator”. Such characterization does not, however, alone require the presumption that Defendant poses the highest risk of recidivism. Section 168-n of the Act directs that the sentencing court first determine whether the defendant is a sex offender or a sexually violent predator and then determine the level of notification. The Board’s Guidelines also interpret the Act to require an individualized evaluation of risk.
It is the public notification provisions that distinguish the various risk levels since all sex offenders must register annually for ten years unless relieved of this obligation by the court. As a sexually violent predator, Defendant is also required to “verify” his address quarterly, not as a function of his risk level designation, but based upon the nature of his conviction. The statute provides that the court may relieve a sexually violent predator of the duty to verify quarterly if it finds “that the person no longer suffers from a mental abnormality that would make him likely to engage in a predatory sexual violent offense”. Such language suggests intent to make the presence of a “mental abnormality” a necessary element of the sexually violent predator designation. The New York statute does not, however, so provide, but, unlike the Federal Act, defines such predator in the disjunctive: an offender convicted of a designated sex crime or an offender “who suffers from a mental abnormality”. There is no indication in the record before the Court in either the Instrument or the Pre-Sentence Investigation Report that Defendant ever suffered from a diagnosed mental abnormality. In light of the language of Section 168-a, however, the Defendant will be required to verify his address with authorities quarterly. He will also be listed in the sexually violent predator directory as provided in Section 168-q.
Turning to the evaluation of the level of risk of recidivism posed by Defendant, this Court finds Defendant’s arguments to be well-founded.
Correction Law Article 6-C, the Sex Offender Registration Act (the “Act”), effective January 21, 1996, modeled after New Jersey’s “Megan’s Law”, was meant to address the need to protect the public from the risk of repeat offenses by perpetrators of sex crimes, deemed inherently susceptible to recidivism. It was also enacted to comply with the federal Violent Crime Control and Law Enforcement Act of 1994, Subchapter VI, Crimes Against Children and Sexually Violent Offender Registration Program. The Act requires that sex offenders be assessed a “risk level” at the time of sentence or prior to release from incarceration. The sentencing court bears the responsibility to make such determination either initially or, for incarcerated offenders, following receipt of the recommendation of a statutorily-created Board of Examiners of Sex Offenders (the “Board”) whose duty it is to evaluate the probability of recidivism on the part of the offender based on certain statutory criteria contained in Correction Law § 168-l(5). The offender is entitled to notice of the risk evaluation proceeding and may request a hearing. Unfortunately, the Act contains several procedural anomalies which have created confusion in implementation and interpretation.
As to all offenders incarcerated at or subsequent to the effective date, the Act requires the Board to “recommend” to the “sentencing court”, prior to the release of such offender, whether the offender warrants a designation as a “sexually violent predator” and the degree of risk of re-offense posed by such offender based upon the Risk Assessment Guidelines and Commentary (“Guidelines”) formulated by the Board pursuant to Correction Law § 168- l(5). The “risk level” will determine the extent of public notification permissible: level one, low risk, permits notice only to law enforcement agencies; level two, moderate risk, provides for notice to enforcement agencies which, in turn, may disseminate the offender’s approximate address by zip code, photograph, sex crimes, modus of operation, victim type and special conditions imposed to any entity with a vulnerable population which may also further disseminate such information at its discretion; level three, high risk, also statutorily deemed a “sexually violent predator”, provides for notice to law enforcement agencies and subsequent dissemination as provided for a “moderate” risk offender, but also permits disclosure of the offender’s exact address. Correction L. § 168-l(6). In addition, all of these particulars are included in a sexually violent predator subdirectory and are available to the public upon request (see § 168-q). Section 168-h mandates annual registration for ten years following initial registration within 45 days of release for all offenders regardless of risk. Sexually violent predators must also “verify quarterly.”
Section 168-n of the Act places upon the sentencing court the duty to actually determine the risk level, following receipt of the Board’s recommendation, thirty days prior to release. The statute further accords the offender the right to be present with counsel at a hearing and to present “materials.” It is this process that has caused great confusion. Some courts have deemed this a sort of administrative review by the court, according deference to the Board’s determination unless arbitrary or capricious. Rather, this Criminal Court finds the assessment mandated under Section 168-n to be a judicial proceeding in which the court must make a de novo determination, giving due consideration to the recommendation of the Board, composed of experienced members of the Division of Parole and Department of Probation with substantial expertise in the behavior and treatment of sex offenders, the documentation upon which the Board relied in making its assessment, together with any statement provided by the victim and any “materials” or testimony submitted by the offender. While the Board’s recommendation and the expertise reflected in the Guidelines is an appropriate reference, the statutory factors should be evaluated by the court independently in making its assessment of risk since the court is required by statute to consider evidence and argument not before the Board. The burden of proof is upon the State, represented here by the Attorney General, to establish a basis for the proposed risk level by clear and convincing evidence. Arson was not involved.
Finally, the District Attorney suggests that fifteen additional points should be added to Defendant’s risk score because he is no longer supervised by a parole officer with special expertise in dealing with sex offenders as he was at the time of his release. Defendant was released to parole on March 1, 1996, having served at least the minimum of a sentence of one and a half to four and a half years imposed on April 18, 1994. On September 3, 1997, he completed his sentence and is therefore no longer within the jurisdiction of the Division of Parole. To grant the District Attorney’s application now, two and a half years after his release, solely because his sentence has been concluded, would be arbitrary and irrational and inconsistent with the purposes of the Act. The District Attorney’s argument here is equally applicable to every convicted offender and, if accepted, would require the eventual assessment of fifteen additional points to every offender who has completed his sentence, regardless of the risk he actually poses. There is no authority for such assessment in the Act or the Guidelines. “Factor 14: Supervision” is clearly intended to apply only to the immediate circumstances at the time of release from incarceration when the offender reenters the community.
Accordingly, the court held that the request to assess fifteen points for lack of supervision is denied.
Penal Law § 130.35(3) does not require proof of force but merely that the victim be less than eleven years old. If you are charge of the crime of rape, seek the representation of a Queens Sex Crime Attorney and Queens Criminal Attorney at Stephen Bilkis and Associates in order to defend your case.