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Correction Law § 168–d(2)

A New York Sex Abuse Lawyer said that, respondent/defendant Division of Criminal Justice Services makes this motion for Summary Judgment. The essential facts in this case are undisputed. Petitioner/plaintiff was convicted in 1991 of Sexual Abuse in the First Degree, Penal Law § 130.65, and was sentenced on February 26, 1991, to five years of probation. In 1995, the New York Legislature enacted the Sex Offender Registration Act of 1995 (“SORA” or “the Act”), effective January 21, 1996, codified under Correction Law § 168. Conviction of any of the enumerated sex offenses automatically classifies an individual as a “sex offender.” Correction Law § 168–a(1). “All criminal sex offenders must comply with the mandatory minimal registration and notification requirements of the statute.”

A New York Sex Crime Lawyer said that, on June 13, 2007, plaintiff received notification from the Division of Criminal Justice Services that as a result of his 1991 conviction, he was required to register as a sex offender. In a proceeding on February 21, 2008, plaintiff was adjudged a sex offender and assigned a notification level of one. The court’s finding of level one accorded with the recommendation of the Board of Examiners.

A New York Criminal Lawyer said that, plaintiff appealed and on March 26, 2010, the Appellate Division held that the six-year statute of limitations in CPLR 213 does not apply to a SORA classification but that “vacatur of defendant’s risk level determination is appropriate.”
The issue in this case is whether SORA is applicable to plaintiff’s case.

The law is applicable to plaintiff, even though he was convicted prior to its enactment. Pursuant to Correction Law, a sex offender is defined as an individual convicted of certain enumerated crimes found in § 168–a, which includes Penal Law § 130.65. Corrections Law § 168–a(1). Sexual Abuse in the First Degree is further defined under the statute as a sexually violent offense. Corrections Law § 168–a(3)(a)(i).

The Act also creates a Board of Examiners of Sex Offenders to “develop guidelines and procedures to assess the risk of a repeat offense by such sex offender and the threat posed to the public safety”. The guidelines encompass nine categories that include mental abnormalities or illness, substance abuse history, criminal history and indicia of risk and re-offense, treatment, behavior and victim impact statements. The Board submits its recommendation to the sentencing court “providing for one of three levels of notification” commensurate with the risk of re-offense.

In a 2010 case decision, the Appellate Division stated, “defendant contends in his main brief and pro see supplemental brief that the classification proceeding was time-barred,” and the court agreed. The Fourth Department explained: Although Correction Law § 168– l(8) expressly provides that a failure by the court “to render a determination within the time period specified in [article 6–C] shall not affect the obligation of the sex offender to register,” we conclude that the 11–year delay is ” ‘so outrageously arbitrary as to constitute a gross abuse of governmental authority.’ ” We therefore reverse the order and vacate defendant’s risk level determination. Rape was not charged.

To Be cont…

If you are in the same scenario, ask for the expert opinion of a New York Sex Crime Attorney and New York Criminal Attorney at Stephen Bilkis and Associates in order to know whether you are covered by the rule on SORA even if you have been convicted prior to its effectivity. Call us.

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