The respondent for this case is the People of the State of New York. The appellant in the case is Neil Pietarniello. The case is being heard in the Second Department of the Supreme Court of the State of New York in the Appellate Division.
Appeal
A New York Criminal Lawyer said this is an appeal from the defendant concerning a previous order from the Kings County Supreme Court. The judge from the previous case was Brennan. The case involved a hearing to determine the sex offender risk level of the defender. The appellant was designated as a level 3 sex offender based on Correction Law article 6-C.
Case Discussion and Verdict
The previous Supreme Court did not provide the facts and conclusions as to why they determined the defendants risk assessment to be a level three. However, this court has made its own conclusions regarding the facts of the case and contrary to what the defendant believes, there was no err in the assessment of points under risk factors eight and nine for the same behavior, which was a misdemeanor offense.
The Sex Offender Registration Act provides the guidelines for which sex offense risk factors are made. In this case, the Sex Offender Registration Act does not directly address issues of whether or not points can be charged in more than one category for the same act. However, the risk assessment instrument does provide for this type of result. Under the criminal history portion of the risk assessment instrument it is stated that the points may be assessed based on the criminals age at the time of their first sexual offense, any facts of prior sexual offenses, and how recent the prior sex offense was. For example, this means that a defendant that has committed a previous sexual offense such as rape within a three year time frame of the current offense and was 20 years old or less at the time of the prior offense may be assessed points in three categories for the same conduct. This means that a defendant may be assessed up to 50 points for a particular act. A level three sex offender is assessed at 110 points, which means that the previous example provides almost half of the points necessary to be deemed a level three sexual offender. Additionally, while the guidelines of the sex offender registration act do not directly assess the issue it does imply that a multiple assessment is allowed.
In this particular case the People have proven through clear and convincing evidence that the defendant had failed to take responsibility for his sexual offences. However, the People did not provide clear evidence to the fact that the defendant has denied sexual offender treatment while he has been incarcerated. Instead, the People relied on a summary from the case that stated that he was removed from the sexual offender treatment program because he was not friendly towards treatment. A Brooklyn Criminal Lawyer said this source is not apparent and the defendant has presented documentation showing that he did not refuse any of the recommended programs while he has been in prison. This point will reduce the point assessment of the defender by five points.
A New York Sex Crimes Lawyer said that even with the reduction in points the defendant remains a level three sex offender and the appeal in this case is denied. The previous order from the Supreme Court is affirmed.
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