This is a proceeding wherein the defendant, JC, was convicted, upon his plea of guilty, of sexual abuse in the first degree. In evaluating the defendant for registration as a sex offender pursuant to Correction Law article 6–C, the Sex Offender Registration Act, the New York State Board of Examiners of Sex Offenders assessed the defendant as a presumptive level two sex offender based, in part, upon his juvenile delinquency adjudication when he was 13 years old. After a hearing, the Supreme Court granted the People’s application for an upward departure to risk level three.
Herein, the court addresses the issue of whether the Supreme Court’s consideration of the defendant’s juvenile delinquency adjudication was permissible as evidence of the defendant’s age at the time of his first sex offense. For the reasons set forth below, the court concludes that the consideration of the defendant’s juvenile delinquency adjudication was improper.
On 12 January 2009, the Board prepared a Risk Assessment Instrument containing the Board’s recommendation to the Supreme Court regarding the defendant’s appropriate risk level designation under SORA. In the RAI, the Board assessed a total of 80 points, which placed the defendant at risk level two. The points were assessed under five risk factors, as follows: 10 points under risk factor 1 (“Used forcible compulsion”); 10 points under risk factor 2 (“Contact under clothing”); 20 points under risk factor 5 (“Age of victim 11 through 16”); 10 points under risk factor 8 (“Age at first act of sexual misconduct 20 or less”); and 30 points under risk factor 9 (“Prior violent felony, or misdemeanor sex crimes or endangering welfare of a child”).
Consequently, the Board recommended an upward departure from risk level two to risk level three on the ground that the defendant had been incarcerated three times and that prior attempts at both probation and parole had failed. In the case summary, the Board stated that the defendant was a sexually violent sex offender based upon his conviction of sexual abuse in the first degree under Penal Law § 130.65 and Correction Law § 168–a[3]. In addition, the Board noted that the underlying offense was the defendant’s third arrest for a sex offense and that two of those arrests involved forcible compulsion.
At the SORA determination proceeding, the People submitted, inter alia, the case summary in support of the Board’s assessment of 80 points. In support of their application for an upward departure, the People argued that this was the defendant’s third state prison incarceration and that prior attempts at parole had failed.
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The defendant’s counsel argued that the assessment of 10 points under risk factor 8, regarding the age of the defendant at the time of his first sexual misconduct, was improper. The defendant submitted an affidavit which discussed the facts surrounding his 1984 juvenile delinquency adjudication, which formed the basis for the assessment of the 10 points under risk factor 8. The defendant averred that in 1984, when he was 13 years old, he was at a party with three older individuals that he knew. Those men were approximately 17 or 18 years old. The men told him to wait while they went inside a park. Inside the park, the men attacked a woman. The defendant stated that while he admitted to acts that would have constituted attempted rape if he had been an adult, he was not an active participant in the attack on the woman and never came into physical contact with her during the attack by the men. The defendant argued that the use of a juvenile delinquency adjudication for an upward departure was prohibited by Family Court Act § 380.1(2), which disallowed the use of such an adjudication for, among other things, preventing legitimate employment.
The criminal defense counsel further contended that the People failed to meet their burden of establishing that the circumstances of the case warranted an upward departure to risk level three. Moreover, defense counsel argued that the People could not show that an upward departure was warranted based only upon the contents of the defendant’s rap sheet and the allegations against the defendant in the juvenile delinquency proceeding.
The prosecutor, on the other hand, argued that the Family Court Act was inapplicable, as the instant matter was a SORA proceeding. The prosecutor noted that the Board’s SORA Guidelines provide that prior crimes include “criminal convictions, youthful offender adjudications and juvenile delinquency findings.” The prosecutor contended that she could not understand why the defendant would be adjudicated a juvenile delinquent based upon his admission to attempted rape in the first degree if, as alleged in his affidavit, all he did was stand outside of a park. She argued that the Guidelines indicated that the age of an offender at the time of his or her first sex crimes is a factor associated with recidivism since those who offend at a young age are more prone to reoffend.
The Supreme Court found that clear and convincing evidence supported the assessment of 80 points against the defendant. The Supreme Court specifically found that the defendant’s juvenile delinquency adjudication could be utilized for scoring under the SORA regulations. Further, the Supreme Court found that the People met their burden of demonstrating, by clear and convincing evidence, that there should be an upward departure from risk level two to risk level three.
On appeal, the defendant argues that he should have been assessed only 70 points by the Board because the provision in the Guidelines permitting consideration of his juvenile delinquency adjudication violates Family Court Act § 381.2. Furthermore, the defendant argues that the People failed to prove, by clear and convincing evidence, that there should have been an upward departure from the presumptive risk level.
The Guidelines provide that if a sex offender committed a sex offense that subsequently resulted in an adjudication or conviction for a sex crimes at age 20 or less, that sex offender is to be scored 10 points under risk factor 8. On this appeal, of the 80 points assessed against the defendant, he challenges only the 10 points assessed under risk factor 8 (“Age at first act of sexual misconduct 20 or less”). Specifically, the defendant asserts that he was improperly assessed 10 points under risk factor 8 because Family Court Act § 381.2 prohibits such an assessment. The defendant concedes that this contention is unpreserved for appellate review because he did not raise that argument before the Supreme Court. However, we reach this contention in the exercise of our interest of justice jurisdiction to address the perceived conflict between the Guidelines and the Family Court Act.
First, the court considers the purpose of juvenile delinquency proceedings. Its intent is to empower Family Court to intervene and positively impact the lives of troubled young people while protecting the public as held in Matter of Robert J. Pursuant to Family Court Act § 301.1, the Family Court is required to “consider the needs and best interests of the respondent as well as the need for protection of the community.”
Family Court Act § 381.2, entitled “Use of records in other courts” provides:
“1. Neither the fact that a person was before the family court under this article for a hearing nor any confession, admission or statement made by him to the court or to any officer thereof in any stage of the proceeding is admissible as evidence against him or his interests in any other court.
2. Notwithstanding the provisions of subdivision one, another court, in imposing sentence upon an adult after conviction may receive and consider the records and information on file with the family court, unless such records and information have been sealed pursuant to section 375.1.”
The Family Court Act § 380.1(1) states that no adjudication under this article may be denominated a conviction and no person adjudicated a juvenile delinquent shall be denominated a criminal by reason of such adjudication as in Holyoke Mut. Ins. Co. v. Jason B.
The court notes that the Legislature has sought to protect young persons who have violated the criminal statutes of this State from acquiring the stigma that accompanies a criminal conviction akin to People v. Gray and Green v. Montgomery. Indeed, as pertinent here, the term “juvenile delinquent” is defined as a child over the age of 7 and less than 16 who has committed a crime but is not criminally responsible for such conduct by reason of infancy.
The Family Court Act § 381.2 is clear. It provides that neither the fact that a person was before the Family Court in a juvenile delinquency proceeding for a hearing, nor any confession, admission, or statement made by such a person to the Family Court, or to any officer thereof in any stage of that proceeding, is admissible in any other court.
The court agrees with the defendant that so much of the commentary to the Guidelines as permits the consideration of juvenile delinquency adjudications in SORA proceedings conflicts with Family Court Act § 381.2. The sole statutory exception to the confidentiality provisions of Family Court Act § 381.2 permits consideration of records and information relating to a juvenile delinquency adjudication and a weapon by a court in imposing sentence upon an adult.
It should be noted that a SORA proceeding is civil in nature as held in People v. Mingo and a risk level determination is not a sentence. Thus, the statutory exception is inapplicable. Consequently, the court holds that the Board, which is merely an advisory panel, exceeded its authority by adopting that portion of the Guidelines which includes juvenile delinquency adjudications in its definition of crimes for the purpose of determining a sex offender’s criminal history. Likewise, the Supreme Court erred in considering the defendant’s juvenile delinquency adjudication in determining the defendant’s appropriate risk level designation under SORA. The court holds that the Board was without the power to adopt a guideline which contravenes the clear legislative pronouncement set forth in Family Court Act § 381.2. If the mere fact that an individual was adjudicated a juvenile delinquent is to be considered in assessing points against an offender pursuant to SORA, such consideration must be specifically authorized by the Legislature, not by the courts or the Board. Therefore, the defendant should not have been assessed 10 points under risk factor 8, which results in a total risk factor score of 70 points, making him a presumptive level one sex offender.
With respect to upward departures, the threshold condition triggering the court’s exercise of discretion is twofold: “(1) as a matter of law, the cited aggravating factor must tend to establish a higher likelihood of reoffense or danger to the community and be of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines, and (2) the People must prove the facts in support of the aggravating factor by clear and convincing evidence” as held in People v. Wyatt.
If the People meet these two preconditions, the SORA court may, in its discretion, upwardly depart. By contrast, if the People do not meet those preconditions, the SORA court has no authority to exercise its discretion to depart upward because SORA requires the ultimate risk designation to be supported by clear and convincing evidence.
Thus, the Supreme Court improperly classified the defendant as a level three sex offender. Accordingly, the order is reversed, on the law, and the defendant is designated a level one sex offender and a violent sexually offender.
The court reverses the decision, on the law, without costs or disbursements, and designates the defendant a level one sex offender and a sexually violent offender.
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