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Sex Crime Offender – Level 1 or Level 2?

A case came before the Supreme Court of the State of New York. A woman had been convicted of one count of promoting prostitution in the second degree. She was required to register as a Level 1 sex offender because of this conviction according to the Sex Offender Registration Act (SORA). Sometime later, the Board of Examiners of Sex Offenders recommended that the defendant’s status should be changed to a Level 2 for this sex crime. The court was not notified that a hearing would be sought to do this. When the defendant appeared in court on April 26 and 27, 2004, it was determined that she was a Level 1 sex offender and that she would not be required to have her picture, address, and other information posted publically.
The woman had originally been convicted of promoting prostitution and endangering the welfare of a child. She was also convicted of criminal solicitation. She had befriended a 13 year-old girl to introduce her to the world of prostitution after being directed to do this by her pimp. She was 22 years old at the time and was sentenced as a first felony offender and was sentenced as such. The People argued that she should be raised to a Level 2 sex offender for her sex crime. Being on this level would label her publically as a sex offender, whereas Level 1 offenders are generally only known by local police.

The request for change of status by the People came about when the defendant was about to be released from prison on probation. She had served two years, and during that time had earned her GED, received training as an electrical worker, and had shown remorse for her crime. She indicated that she no longer wanted to work as a prostitute.

A point system is used to determine whether those found guilty of a sex crime are labeled as a Level 1, Level 2, or Level 3 sex offender. The People wanted to assess 10 points for the Use of Violence against the victim, the 13 year-old girl. By not providing the statutory 10 days’ notice to the defendant that they intended to argue to have her risk assessment determination changed, they lost their right to be heard in this matter regarding her risk assessment. The defendant did not waive her right in this matter, so 10 points were not assessed. It was never proven that the defendant used force against the victim, even though the victim had been forced to watch the pimp and her drag another prostitute into a house. There was insufficient evidence to support the violence risk factor, so the defendant did not deserve to have 10 points assessed against her in this matter.

In addition, the Board wanted to assess 25 points because of the defendant’s sexual contact with the victim. The defendant argued that she had no sexual contact with the victim, and there was insufficient evidence to prove that she had done so. The defendant was found to not have had any type of sexual intercourse with the victim at her trial. Although she did instruct the victim to perform sexual acts with customers for a fee, she was not found responsible for what the customers did to the victim. Risk factor two was assessed zero points because there was insufficient evidence that the defendant was an accomplice to the customers or pimp.
The Board also recommended that 20 points be given for the defendant’s continuation of sexual misconduct with the victim. Zero points were assessed since there was insufficient evidence that the defendant had any sexual misconduct at all with the victim. Additionally, because the girl was 13 years old, 20 points were assessed due to the victim’s age when the sex crime occurred. Twenty points were also assessed due to the fact that the defendant befriended the girl to victimize her for the purpose of prostitution. Additionally, 5 points were assessed due to the defendant’s eight misdemeanor convictions for prostitution. She had no history of felonies or sex crimes other than these.

The total number of points assigned to the defendant was 45 for the risk factors, so she remained a Level 1 sex offender and was determined to be of low risk to the community. The Court determined that the defendant would most likely not return to prostitution and that she is unlikely to repeat her sex crime. She will remain a Level 1 sex offender and will need to register as such for 10 years only.

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