Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 6, #10©

Issue: The methodology used by NYS to recommend risk level classifications under the Sex Offender Registration Act

The Board of Examiners of Sex Offenders is responsible for implementing the SORA classifications, and developing procedures to evaluate risks. Corr Law §168-l. A "Risk Assessment Instrument," developed in 1997, allocates points to various factors. Corr Law §168-l(5). While there is scientific criticism of the predictive value of the RAI factors, its use does not violate due process. People v Bligen, 33 AD3d 489, 823 NYS2d 42 (1st Dept 2006).

A "Risk Assessment Instrument" is prepared, in which points are assessed based on 15 different criteria. The RAI is usually provided by the State Board of Examiners of Sex Offenders, though it may be by the local prosecutor, where the defendant is not sentenced to incarceration. Corr Law §168-d(3).

A RAI must be prepared. People v Sass, 27 AD3d 968, 812 NYS2d 150 (3d Dept 2006); People v Sanchez, 20 AD3d 693, 798 NYS2d 258 (3d Dept 2005). Conducting a SORA hearing before sentencing and without the Board's recommendation violated due process. Where a defendant is to be sentenced to incarceration, the risk level determination should not be made until 30 days before release from custody. Corr Law §168-n(2); People v Black, 33 AD3d 981, 823 NYS2d 485 (2d Dept 2006).

Also included with the RAI is a "Case Summary," the Board's evaluation of the offender and amplification of reasons for its recommendation.

A copy of the November 1997 guidelines is available from the Board of Examiners of Sex Offenders, 1220 Washington Ave, Albany NY 12226-2050. For further information: In 2006 the Board has issued a 2006 revision of the guidelines and commentary.

RAI Factors

The RAI lists 15 risk factors that will result in points being added:

• Use of violence
Adding points for weapons possession was improper where the offender, who had entered an Alford guilty plea, had not admitted that he possessed a dangerous weapon. People v Gonzalez, 28 AD3d 1073, 814 NYS2d 834 (4th Dept 2006).

• Sexual contact with victim

• Number of victims

• Duration of offense conduct with victim

The court misapplied the guidelines by adding extra points for multiple acts with the same victim within a one-day period. The court also incorrectly found an attempted act to be a completed act of intercourse. People v Madlin, 302 AD2d 751, 755 NYS2d 121 (3d Dept 2003).

Points for continuing conduct were inappropriate with contacting an undercover detective via the Internet. People v Costello, 35 AD3d 754, 826 NYS2d 429 (2d Dept 2006).

• Age of victim
Adding points for both age of victim and physical helplessness resulted in improper double counting. People v Fisher, 22 AD3d 358, 803 NYS2d 45 (1st Dept 2005).

• Other victim characteristics (mental defect, physical helplessness)

• Relationship between offender and victim
Points were properly assessed where the grand jury testimony supported a reasonable inference that victim and offender did not know each other. People v O'Neal, 35 AD3d 302, 828 NYS2d 24 (1st Dept 2006).

• Age at first sex crime

• Number and nature of prior crimes
A 17 year old prior sex offense conviction could be considered. People v Oginski, 35 AD3d 952, 824 NYS2d 810 (3d Dept 2006).

Points were properly included for a prior Youthful Offender adjudication. People v Goodwin, 35 AD3d 1285, 825 NYS2d 414 (4th Dept 2006).

• Recency of prior felony or sex crime

• Drug or alcohol abuse
The Board had recommended an upward departure based on the offender's mental health and drug dependency. The recommendation was duplicative of factors for which maximum points were already assessed. There was no evidence that offender's depression was causally related to risk of reoffense. People v Perkins, 35 AD3d 1167, 826 NYS2d 875 (4th Dept 2006).

A prior drinking-driving conviction did not establish the drug / alcohol risk factor. People v Guaman, 12 Misc3d 707, 819 NYS2d 390 (Sup 2006).

Points were improperly where the offender had been alcohol-free for eight years. People v Wilbert, 35 AD3d 1220, 825 NYS2d 884 (4th Dept 2006).

Drug-related convictions were excessively remote, and no evidence was shown of a current problem. People v Irizarry, 36 AD3d 473, 827 NYS2d 152 (1st Dept 2007).

• Acceptance of responsibility
After pleading guilty and during the PSI interview, the offender transferred blame to the victim and indicated that she misled him about her age. People v Dubuque, 35 AD3d 1011, 824 NYS2d 823 (3d Dept 2006).

Points were properly added for an offender who entered an Alford plea and thereafter denied guilt while in prison and refused to enter sex offender treatment. People v Donhauser, 37 AD3d 1053, 829 NYS2d 772 (4th Dept 2007).

The prosecution appealed a Level 2 determination. The offender's statements in the PSR in which he denied sexual contact established failure to take personal responsibility for his conduct, resulting in additional points and a Level 3 finding. People v Carman, 33 AD3d 1145, 822 NYS2d 819 (3d Dept 2006).

• Conduct while confined or under supervision
Tier III prison disciplinary adjudications for nonsexual offenses resulted in unsatisfactory conduct while confined. People v Peterson, 8 AD3d 1124, 778 NYS2d 626 (4th Dept 2004).

Points had been added for conduct while supervised or confined when the offender's behavior on probation was "exemplary." Additionally, duplicative points were added under different categories. People v Wilbert, 35 AD3d 1220, 825 NYS2d 884 (4th Dept 2006). Cf. People v Scott, 35 AD3d 1015, 825 NYS2d 325 (3d Dept 2006) (no reduction in points for postrelease behavior).

• Supervision
Points were properly added where the offender served the maximum prison sentence and was released without supervision. People v Donhauser, 37 AD3d 1053, 829 NYS2d 772 (4th Dept 2007).

• Living or employment situation
A person living near an elementary school may result in an increase in points. However, the fact of a person's living situation being uncertain should not result in points being increased. People v Ruddy, 31 AD3d 517, 818 NYS2d 271 (2d Dept 2006).

If you torture data sufficiently, it will confess to almost anything. -- Fred Menger

Victim Impact Panel
State. Most defendants with drinking-driving convictions who are sentenced to probation or conditional discharge are required, as part of that sentence, to attend a one-time program at which family members of someone killed or injured by a drunk driver speak about the consequences. Penal Law §65.10.


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