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Defense counsel countered… cont

At the SORA hearing on February 17, 2006, defense counsel asserted that defendant should not be assigned points under risk factor 15. First, he stated his “understanding that defendant has been advised that when he is released, that he should go to the Bellevue men’s shelter as he has no other place to live and then he will be working with a community organization to try to find him employment.” He argued that risk factor 15 was limited to “living in a place, where there is for example a child or living with someone who had been abused in the past.”

The People advanced a less restrictive reading of risk factor 15. The prosecutor noted that “defendant was known to be prior to this case basically homeless and not working”; further, although “the commentary in the sex offender guidelines” talks about “living situations or work situations that give defendant access to victims it also talks about situations where there is a reduced probability of[detection and given that defendant has no community ties, if he were to commit this type of sex crime again, there is a reduced possibility of detection because he will be hard to locate which is a factor relevant to whether he poses a risk.”

Defense counsel countered that when the SORA Commentary on risk factor 15 refers to “a reduced probability of detection,” this means only that a defendant “will be in a certain situation where because of his relationship with possible victims, that will never be detected not because someone is homeless but because someone lives in the type of situation for example, with a niece and it will not be detected.” He further argued that homelessness was relevant to whether defendant would be “adequately supervised,” which was covered by a different risk factor in the RAI, and “here in fact, defendant is given five additional points under risk factor 14 because while he will be released with supervision, and not released with no supervision, he won’t be released with specialized supervision. So he already is being given points because he has a somewhat precarious supervision situation.” Supreme Court then asked if either attorney wanted an evidentiary hearing. When both responded negatively, the judge said that he “would like an opportunity to reflect on the arguments put forward” prior to making his decision.

At the next court appearance on March 3, 2006, Supreme Court summarized the arguments made by both defense counsel and the prosecutor at the SORA hearing relative to risk factor 15; discussed a case cited by defense counsel as well as another case; and noted that he had reviewed the SORA Guidelines and Commentary. Having “fully considered” the arguments, the judge adjudicated defendant a level two sex offender. Explaining his decision, he stated that “the fact that defendant is un-domiciled creates a very difficult situation as far as the probability of detection for any violations,” and that there was no reason for a downward departure from the presumptive risk level. On March 10, 2006, Supreme Court imposed the agreed-upon sentence on defendant.

Defendant subsequently appealed his classification as a level two sex offender. On November 6, 2008, the Appellate Division modified Supreme Court’s order “on the law” by reducing defendant’s classification to level one.

Defendant interprets risk factor 15 as limited to a living situation that “gives a sex offender access to victims or opportunities to perpetrate crimes out of the public eye with the accompanying reduced probability of detection”, citing as an example a case where a child molester planned to reside with small children who were family members. The SORA Commentary gives a different example-i.e., a child molester “living near an elementary school playground”. What both illustrations have in common is proximity to potential victims, not an increased risk that any future crimes may go unreported because of the setting in which they are carried out.

We see no reason to interpret “reduced probability of detection” to mean only access to victims, whether or not “out of the public eye.” A sex offender who has no address, does not frequent a shelter or participate in any community programs and is unemployed is, for these reasons, more difficult for law enforcement authorities to locate. This living situation presents a “reduced probability of detection” because the inability to find a sex offender reduces law enforcement authorities’ capacity to discover or investigate any future crimes the sex offender might commit, to connect him to those crimes, or to apprehend him. And a lessened likelihood of getting caught is thought to increase the risk of recidivism. Finally, our interpretation is consistent with SORA’s overall concern with keeping track of sex crime offenders, and does not create any overlap between risk factors 15 and 14, as defendant claims. The latter assigns points depending on the existence and specialization of supervision afforded a sex offender upon his release into the community, independent of his living situation.

Here, there was clear and convincing evidence that defendant was homeless and lacked any history of living in shelters or community ties. Specifically, the CJA interviewer’s report, based on information provided by defendant himself, indicated that he had been homeless for two years, that he could not provide a “NYC area address” where he resided, that he did not have a residential or cell phone, and that he furnished “no contacts” to the CJA. Similarly, the PSR stated that defendant “reported that he was un-domiciled and unemployed” and was “currently un-domiciled and unable to provide an address or a shelter as to where he was residing.”
Finally, we emphasize that we are not creating any per se rule such that a sex offender who is homeless must always be assessed points under risk factor 15. In an individual case, there may be evidence that a sex offender has a history of living in shelters, or community ties. In Ruddy, for example, the defendant had been renting a room and living in a “sober house” at the time of his arrest. Furthermore, the defendant stated that, upon his release from prison, he intended to resume living at the sober house, assuming that his room had not been rented to someone else. But he also informed the probation officer that, in the event he could not return to the sober house, he would find housing in a shelter. That is, the defendant’s living situation was “uncertain” in Ruddy because it was not known at the time of the SORA hearing whether he would be living in the sober house or a shelter upon his release from incarceration; there was no evidence showing that he would likely live on the streets after he left prison, as was the case here.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the order of Supreme Court reinstated.

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