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Defense counsel countered

A New York Criminal Lawyer said that, at approximately 6:30 P.M. on November 29, 2005, defendant was riding a bicycle toward a woman who was jogging on the bridle path in Central Park in Manhattan. After he passed her, defendant got off the bicycle, made kissing noises, and then lunged at the woman and attempted to grab her thighs. She managed to escape defendant’s grasp and ran away, with defendant in pursuit for a short distance. The woman hurried to the Central Park Police Precinct, where she reported this encounter. She then accompanied three police officers as they patrolled the park by car, looking for defendant. They soon spotted him running down another woman on his bicycle. The police stopped defendant and arrested him; this second female was crying hysterically and shaking. Defendant admitted to the police that he had gone to Central Park to “have sex with a woman by force” because he was angry that his girlfriend had cheated on him. Defendant also told the police that he had chased after a third woman, who got away from him.

A New York Sex Crime Lawyer said that, defendant was charged in a felony complaint with two counts of attempted rape in the first degree, and one count of resisting arrest. Prior to his arraignment on November 30, 2005, an interviewer from the New York City Criminal Justice Agency (CJA) assessed defendant’s risk of flight. The CJA interviewer’s report stated that defendant had been homeless for two years; did not “report a NYC area address”; did not “have a working telephone in residence/cell phone”; provided “no contacts” to CJA; was unemployed; did not have “other sources of financial support”; and did not “provide support for others.” Accordingly, defendant was “not recommended for ROR” (i.e., release on recognizance) because he was a “high risk for FTA” (i.e., failure to appear).

A New York Criminal Lawyer said that, on January 17, 2006, defendant signed a written waiver of indictment, and agreed to be prosecuted on superior court information charging him with attempted first-degree sexual abuse. That same day, defendant pleaded guilty to this crime in exchange for a sentence of six months in jail, to run concurrently with a 10-year period of probation. Defendant was informed that as a consequence of his plea he would be required to register as a sex offender pursuant to SORA.

The issue in this case is whether homelessness may be considered an inappropriate living situation within the meaning of risk factor 15 of the risk assessment instrument (RAI) used to rate the threat to the community posed by a defendant covered under the Sex Offender Registration Act (SORA) (Correction Law art 6-C).

The court in deciding the case said that, the Supreme Court put over sentencing in order for a presentence report (PSR) to be prepared by the New York City Department of Probation. The probation officer who interviewed defendant on January 17, 2006 noted on the PSR that he “appeared to have minimal community ties, reporting that he was un-domiciled and unemployed”; and “reported that he was currently un-domiciled and was unable to provide an address or a shelter as to where he was residing.”

Prior to the SORA hearing, the People prepared and provided the court and defendant with the RAI, as required by Correction Law § 168-d (3). The People sought to assess defendant 75 points on the RAI, thus classifying him presumptively as a level two sex offender. As relevant here, the People assigned defendant 10 points under risk factor 15, “Living or Employment Situation” in the SORA Guidelines promulgated by the Board of Examiners of Sex Offenders (the Board). These 10 points were critical because a score of 70 or less on the RAI results in a presumptive risk assessment of level one.

With respect to risk factor 15, the SORA Guidelines state simply that the “offender’s living or employment situation is inappropriate (10 pts).” The accompanying commentary expands on the meaning of “inappropriate” as follows: “Many sex offenders are opportunistic criminals whose likelihood of reoffending increases when their release environment gives them access to victims or a reduced probability of detection. An example of an offender in an inappropriate work situation is a child molester employed in an arcade or as a school bus driver. If the same offender were to live near an elementary school playground, his living environment would be inappropriate. An offender is assessed 10 points in this category if either his work or living environment is inappropriate”.

To Be cont…

If you are indicted of rape, seek the representation of a New York Criminal Attorney and New York Sex Crime Attorney at Stephen Bilkis and Associates in order to appeal your case. Call us.

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