Correction Law § 168-d(3)

This is a proceeding wherein the defendant was charged under Indictment number 98027 with two counts of Sexual Abuse in the First Degree under PL § 130.65, a D violent felony, and Endangering the Welfare of a Child under PL § 260.10, an A misdemeanor.

The defendant pled guilty on 23 January 1998, pursuant to a plea bargain agreement under count one to the lesser charge of Sexual Abuse in the Second Degree under PL § 130.60, an A misdemeanor, and under count three to Endangering the Welfare of a Child under PL § 260.10, an A misdemeanor, in satisfaction of the indictment.

The Court notified the defendant on 11 May 1998, prior to sentence, that based upon his conviction for Sexual Abuse in the Second Degree and in accordance with the public notification and disclosure provisions of the New York State Sex Offender Registration Act. The Court intended at the time of sentence to certify the defendant as a sex offender as required by Correction Law § 168-d and to assign a risk assessment level of 3 to the defendant using override provision (iv) of the Risk Assessment Guidelines established by the Board of Examiners of Sex Offenders pursuant to Correction Law § 168-1(5).

The defense counsel was given the opportunity to review the presentence report prepared by the Probation Department with an attached clinical assessment from Child Abuse Prevention Behavior Associates (hereinafter referred to as “CAP Behavior Associates”). The matter was adjourned until 20 May 1998 to allow the defendant and his counsel to “appear and be heard,” as provided for by Correction Law § 168-d(3), regarding the risk assessment determination to be made by the Court at the time of sentence which was scheduled for 28 May 1998.

The criminal defendant argued on 20 May 1998 that the Court could not move forward with its risk assessment determination because there was no report provided to the Court by the Board of Examiners. The People opposed the application upon the ground that Correction Law § 168-d does not require a report to be prepared by the Board of Examiners since the defendant was to be sentenced by the Court to probation. The Court concurred, and the defendant’s application was denied in its entirety.

The Board of Examiners developed a set of “Risk Assessment Guidelines” for determining an offender’s level of notification. The Sex Offender Registration Act: Risk Assessment Guidelines and Commentary was first issued by the Board of Examiners in January of 1996 and later revised in November of 1997. The guidelines provide a detailed, point-based system assigning numerical values to fifteen risk factors placed into four different categories relating to current offense, criminal history, post-offense behavior, and planned release environment. A presumptive risk level of 1 (low risk), 2 (moderate risk), or 3 (high risk) is calculated for an offender by adding up the points assigned to the offender in each category. However, the guidelines provide that the presumptive level can be departed from and a level 3 designated if any one of four overrides is found to be present by the Court. The four “overrides” that automatically result in a presumptive risk assessment level 3 are: “(i) a prior felony conviction for a sex crime; (ii) the infliction of serious physical injury or the causing of death: (iii) a recent threat to reoffend by committing a sexual or violent crime; or (iv) a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior.

The United States Constitution and the New York State Constitution provide that no person shall be deprived of life, liberty, or property without due process of law. Under the Fourteenth Amendment of the United States Constitution, procedural due process is a flexible concept. In determining which procedures are constitutionally required in a given situation, the United States Supreme Court has held that three factors must be balanced: (1) the nature of the private interest; (2) the risk of erroneous deprivation of that interest and the probable value of additional safeguards; and (3) the government’s interest in taking its action including the burden that any additional procedural requirement would entail as emphasized in Mathews v. Eldridge.

The Mathews test requires that a person be afforded notice and an opportunity to be heard and the nature of the proceeding should be appropriate to the nature of the case. What constitutes a “hearing” varies in different situations. A full evidentiary hearing is usually not required. In general, “something less” than a full evidentiary hearing is usually sufficient as held in Goss v. Lopez. Due process is satisfied if a party is given notice and the opportunity to present reasons, either in person or in writing, why a proposed action should not be taken. Notably, due process does not encompass the right to counsel in civil proceedings.

On the other hand, in criminal proceedings, due process applies to every critical stage of a criminal proceeding necessitating not only notice and an opportunity to be heard but also invoking the defendant’s right to counsel under the Sixth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment.

The right to counsel is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be attacked. Even so, full-blown evidentiary hearings are not always required. Under New York statutory and case law, it is not mandated that a criminal defendant is always entitled to an evidentiary hearing. The opportunity to be heard language of due process appeared in New York statutory law for violations of probation under the original Code of Criminal Procedure. Section 932 of the Code of Criminal Procedure was later superseded by Criminal Procedure Law § 410.70(3) where the statute specifically states that the court must conduct a summary hearing and allow the defendant to present evidence on his behalf and cross-examine witnesses.

The language “opportunity to be heard” is still present in CPL § 510.20(2) for applications for recognizance or bail. Similarly, at the time of sentence, a defendant is given an “opportunity to controvert or to comment upon any fact” contained in a presentence report under CPL § 400.10[3].

In Gardner v Florida, it was held that even though sentencing is a critical stage of a criminal proceeding, the full panoply of constitutional rights is not applied to the sentencing process.

It is to be noted that the key is whether the defendant has been afforded an opportunity to refute those aggravating factors which may have negatively influenced the court as held in People v. Perry. It is within the discretion of the court whether or not to hold a hearing on any matter relevant to sentence under CPL § 400.10[3]. In fact, the New York Court of Appeals has held that where an issue is raised concerning the validity of a post plea crime allegedly committed by the defendant prior to sentence or there is a denial of any involvement in the underlying crime, minimal due process does not automatically require an evidentiary hearing as held People v. Outley. The court must conduct an inquiry at which the defendant has an opportunity to show that the arrest is without foundation. The nature and extent of the inquiry whether through a summary hearing pursuant to CPL 400.10 or some other fair means is determined by the court’s discretion.

The court notes that the risk level classification procedure has less onerous implications than a sentencing procedure. Accordingly, the defendant should not be entitled to any greater due process rights than the defendant already has at the time of sentence. Concomitantly, any burden of proof to be imposed upon the People at a risk level classification procedure should be no greater than the burden imposed upon the People at the defendant’s time of sentence.

Noteworthy is the fact that on 11 May 1998, the Court notified the defendant, in open court, with counsel present, that the Court was intending to assign a risk assessment level of 3 using the override provision (iv) on the risk assessment instrument. Also, it informed the defendant that it would allow the defendant to appear and be heard on 20 May 1998 with regard to the risk assessment level determination and that the defendant had the right to have counsel present.

The Court had received a presentence report from Probation prior to 11 May 1998. Annexed thereto was the clinical evaluation requested by the Nassau County Probation Department. The clinical assessment stated that defendant met the full criteria for a diagnosis of pedophilia under DSM IV-302.20.

It is also to be noted that the defendant was permitted to review the presentence report and the clinical assessment from CAP Behavior Associates in preparation for the risk level assessment proceeding that would take place on 20 May 1998 and the defendant submitted a letter to the Court from the psychologist with whom he was now in therapy.

Also, on 20 May 1998, the defendant appeared with counsel. The Court informed the defendant that the risk factors on the risk assessment instrument prepared by the Board of Examiners, pursuant to the guidelines prepared in accordance with Correction Law § 168-1, indicated the presumptive risk level to be a level 2 with a total of +80 points. The risk factors were determined as follows: sexual contact with victim under clothing (k10); number of victims were two (k20); duration of offense conduct with victim (k20); age of victim between 11 through 16 (k20); and, the defendant had not accepted responsibility (k10).

The Court, however, informed the defendant that the Court intended to impose a risk level 3 using override provision (iv); to wit: that there has been a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases ability to control impulsive sexual behavior.

The defendant even requested that he be permitted to present testimony to the Court from KC, C.S.W., who had prepared the clinical assessment report from CAP Behavior Associates. KC was on the committee of a panel of eight experts that made recommendations to the Board of Examiners regarding the guidelines prepared by the Board of Examiners. The offer of proof made by the defense was that Mr. KC’s testimony would not change the diagnosis of the defendant that was contained in his report but would offer insight as to the intent of the Board of Examiners in establishing the guidelines and that he would testify that it would not be the intent of the Board to impose a risk assessment level of 3 upon a person in defendant’s situation.

The court finds that Mr. KC’s testimony was unnecessary. He was part of a committee that did not prepare the guidelines but only made suggestions to the Board of Examiners as to what the guidelines should contain. Only some of the recommendations by the committee were even considered by the Board of Examiners. In fact, the Board of Examiners did not change the guidelines which provided that override provision (iv) was to be applied to a clinical assessment of pedophilia.

The court finds sufficient information for determination of a risk assessment level of 3 to be assigned.

The court notes that the report from CAP Behavior Associates, written by the proposed defense witness, diagnosed the defendant with pedophilia. The diagnosis is not controverted by the defendant. None of the information recounted in the presentence report was specifically controverted by defense counsel during oral arguments to the Court as to the appropriate risk assessment level to be assigned to the defendant. Nor did the defendant controvert the statements in the presentence report that the defendant had a preoccupation with children and continues to socialize with children in the neighborhood. He was also the soccer coach, baseball coach, and ice skating coach for girls’ teams.

The Court was provided with sufficient, reliable, and accurate information to determine the defendant’s risk level allocation as level 3 based upon the oral arguments presented by defense counsel and the People, the victim impact statements provided in the presentence report prepared by the Probation Department, the report from CAP Behavior Associates, the materials submitted by defense counsel, and the guidelines and Commentary prepared by the Board of Examiners.

This determination is based upon the override provision (iv) contained in the risk assessment guidelines and commentary–there has been “a clinical assessment that the offender has a psychological abnormality that decreases the ability to control impulsive sexual behavior. An evidentiary hearing was not necessary. The People have met their burden of proof by a preponderance of the evidence that a risk level of 3 is appropriate and that the information presented to the Court is both reliable and accurate. There was no assault and there was no arson charges.

Accordingly, the Court finds the defendant to be classified as a risk level 3, a sexually violent predator, requiring the full notification procedures warranted by the Sex Offender Registration Act.

Stephen Bilkis & Associates in coordination with New York Sex Offense Attorneys and New York Sexual Abuse Attorneys are experts in these kinds of litigation. Question regarding the case mentioned above may be posed at our toll free number or you may visit our offices near you. A team of well-seasoned lawyers will be glad to assist you.