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SORA: Double counting with assessment instrument
by Gary Muldoon
Muldoon & Getz
Rochester, New York
www.muldoongetz.com


Under the Sex Offender Registration Act, a defendant convicted of a sex offense must be assigned a risk level. A "Risk Assessment Instrument" is used, in which points are added for various conduct or conditions. If the points reach a certain threshold, the defendant is presumptively classified at the higher risk level. Problems may arise where points are assessed for the same conduct under two different factors in the Risk Assessment Instrument.

RAI factors

The commentaries to the guidelines issued by the Board of Examiners of Sex Offenders note the problem. Absent extraordinary circumstances, points should not be included under Factor 6 (mental defect, physical helplessness) if points were added in Factor 5 (age of victim). See People v Fisher, 22 AD3d 358 (1st Dep't 2005); cf. People v Caban, 61 AD3d 834 (2d Dep't 2009); People v Ramirez, 53 AD3d 990 (3d Dep't 2008).

Improper duplicative counting has occurred with other factors. People v Wilbert, 35 AD3d 1220 (4th Dep't 2006) (age at first sex crime; number and nature of prior crimes).

Concerns with double counting have been denied where the two factors had little or nothing to do with each other. People v Davis, 51 AD3d 442 (1st Dep't 2008) (age of victim; physical helplessness); People v Pietarniello, 53 AD3d 475 (2d Dep't 2008) (age at prior first sex crime; prior sex crime); People v Hurlburt-Anderson, 46 AD3d 1437 (4th Dep’t 2007) (acceptance of responsibility; conduct while confined or under supervision).

Departures

 Double counting problems may also arise with a "departure" from the RAI score. Where two factors (prior conviction and alcohol abuse) were already considered and the offender was assessed the maximum number of points for those categories, upward departure was inappropriate. People v Mount, 17 AD3d 714 (3d Dep't 2005). Cf. People v Vives, 57 AD3d 312 (1st Dep’t 2008).

© 2010 by Gary Muldoon