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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.

On December 17, 2010, petitioner was notified by the Division that he was still obligated to register as a sex crimes offender. In moving for summary judgment, the Division argues that the Appellate Division could only reverse plaintiff’s risk level determination because that was the only issue actually decided by the court. The Division argues, citing Correction Law § 168–d(2), that, “at the risk determination hearing, the court does not consider whether or not a sex offender is required to continue to register under SORA, it only determines the risk level, the duration of registration and the court designation of sexual predator’ or sexually violent offender.” Rather, according to the Division, plaintiff’s “obligation to register was imposed by statute not by judicial determination and therefore was not subject to reversal on appellate review. Moreover, the petitioner’s conviction has not been reversed or pardoned therefore, the petitioner is required to register even though he has no risk assessment.”

Moreover, the Division maintains that there are no due process concerns triggered by the registration requirements that plaintiff is subject to in this case. Plaintiff has not been designated as “sexually violent offender” or “sexual predator.” In response, plaintiff argues that the Appellate Division “order relieves him of all obligations in regards to the Division of Criminal Justice Services including a registration requirement.” In response to the Division’s summary judgment motion, plaintiff has abandoned any constitutional questions, specifically rejecting this court’s February 3, 2012, characterization of this action as raising due process concerns, and avers that “[t]his declaratory judgment action is clearly limited to a question on the construction of the language contained within the Appellate Court’s Order and the effect of the Appellate Court’s Order upon the parties.”

This court concludes that the plain language of the March 26, 2010, decision the Appellate Division vacated only the risk level classification assigned to plaintiff. Plaintiff remains a sex offender under the statute and is required to comply with the registration requirements attendant to that status. Correction Law § 168–h(1) provides for a 20 year registration requirement, even where no risk level has been assigned: “The duration of registration and verification for a sex offender who has not yet received a risk level classification, shall be annually for a period of twenty years from the initial date of registration”. Section 168–f provides additional obligations as to sex offenders without reference to a specific notification level. Correction Law § 168–f(2)(a), (b) and (c), and § 168–f(4). This section sets forth additional requirements if one has a level one, two or three designation provided.

While plaintiff is correct that “both registrability and risk level are decided by a court, the Appellate Division did not vacate his registration requirement, i.e., his certification as a sex offender, though plaintiff then sought that relief. Plaintiff makes it apparent that the question of vacatur of the registration requirement, as well as his classification level were before the Appellate Division. In his Appellant’s Pro Se Supplemental Brief,1 plaintiff specifically sought an order from the Appellate Division that he be relieved of registering as a sex offender.

This court should find that in both law and equity the defendant is not subject to registration under the SORA and reverse the order of the lower court, and further order defendant’s name removed from the sex offender registry. Contrary to plaintiff’s contention, however, this requested relief does not match “almost exactly” the lower court’s decision. Despite that the question of registration was before the court, the Appellate Division vacated only his risk level determination. The Appellate Division did not order his name removed from the sex offender registry or find that he was not subject to registration.

In this case, there is no question that plaintiff’s conviction under Penal Law § 130.65, Sexual Abuse in the First Degree, qualifies as a “sex offense” and is in fact specifically designated as a “sexually violent offense” under the statute. Corrections Law § 168–a(3)(a)(i). Thus, the Appellate Division left plaintiff’s sex offender certification in place.

Moreover, the Appellate Division’s determination to vacate only plaintiff’s risk level determination is consistent with the Correction Law’s explicit separation of the registration requirement and risk level classification. 2 “It is the duty of the court that, “upon conviction of any of the offenses set forth in subdivision two or three of section one hundred sixty-eighth-a of this article the court shall certify the person is a sex offender.” Correction Law § 168–d(1)(a)(emphasis supplied). Registration consists of “a statement in writing signed by the sex offender giving the information that is required by the division and division shall enter the information into an appropriate electronic data base or file.”

In a separate section of the statute, the Board is empowered to make a criminal recommendation to the court to provide for one of “three levels of notification depending upon the degree of risk of re-offense by the sex offender.” Correction Law § 168– l(6). And, “the sentencing court shall also make a determination with respect to the level of notification, after receiving a recommendation from the board.” Correction Law § 168–n(2). What the division and law enforcement agencies may do as far as disseminating information pertaining to the sex offender is specifically spelled out in the statute at § 168– l(6)(a) to (c) with reporting requirements increasing for each level. Assault could have been charged.

Accordingly, the court held that, the Division’s motion for summary judgment declaring that plaintiff is required to register as a sex offender pursuant to Correction Law § 168–f is granted.

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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