This is a proceeding wherein the defendant was charged under Indictment number 98027 with two counts of Sexual Abuse in the First Degree under PL § 130.65, a D violent felony, and Endangering the Welfare of a Child under PL § 260.10, an A misdemeanor.
The defendant pled guilty on 23 January 1998, pursuant to a plea bargain agreement under count one to the lesser charge of Sexual Abuse in the Second Degree under PL § 130.60, an A misdemeanor, and under count three to Endangering the Welfare of a Child under PL § 260.10, an A misdemeanor, in satisfaction of the indictment.
The Court notified the defendant on 11 May 1998, prior to sentence, that based upon his conviction for Sexual Abuse in the Second Degree and in accordance with the public notification and disclosure provisions of the New York State Sex Offender Registration Act. The Court intended at the time of sentence to certify the defendant as a sex offender as required by Correction Law § 168-d and to assign a risk assessment level of 3 to the defendant using override provision (iv) of the Risk Assessment Guidelines established by the Board of Examiners of Sex Offenders pursuant to Correction Law § 168-1(5).
The defense counsel was given the opportunity to review the presentence report prepared by the Probation Department with an attached clinical assessment from Child Abuse Prevention Behavior Associates (hereinafter referred to as “CAP Behavior Associates”). The matter was adjourned until 20 May 1998 to allow the defendant and his counsel to “appear and be heard,” as provided for by Correction Law § 168-d(3), regarding the risk assessment determination to be made by the Court at the time of sentence which was scheduled for 28 May 1998.
The defendant argued on 20 May 1998 that the Court could not move forward with its risk assessment determination because there was no report provided to the Court by the Board of Examiners. The People opposed the application upon the ground that Correction Law § 168-d does not require a report to be prepared by the Board of Examiners since the defendant was to be sentenced by the Court to probation. The Court concurred, and the defendant’s application was denied in its entirety.
The defense counsel requested for an evidentiary hearing. He begs the question as to what procedures should be followed by this Court, pursuant to Correction Law § 168-d(3), to ensure that the defendant’s rights to due process under the United States Constitution and the New York Constitution are not violated.
The New York State Sex Offender Registration Act, SORA, Section 3 of Chapter 192 of the Laws of 1995, was passed on 25 July 1995 and became effective on 21 January 1996. The Act was modeled after New Jersey’s “Megan’s Law,” named for seven-year old Megan Kanka, who was raped and murdered in 1994 by a twice-convicted sex offender who lived across the street from her home.
The purpose of the Sex Offender Registration Act was regulatory as held in Doe v. Pataki. It required individuals convicted of certain listed sex offenses to register with law enforcement officials, and it authorized those officials to provide the public access to the identity, whereabouts, and background of registrants depending upon a risk level assigned to the sex offender. The legislative history of the Sex Offender Registration Act, cited by the U.S. Court of Appeals in Doe v. Pataki stated that “community notification promotes a state interest in advancing the protection of the public. The public is notified so that they can be the “eyes and ears” of law enforcement agencies. It will enable the public to notify the appropriate authorities if the sex offender violates any condition of the offender’s parole or probation, which would enable the authorities to intervene when a releasee’s behavior begins to pose a threat to community safety. This is extremely important given the high recidivism rate many of these offenders have and the lack of scientific evidence that proves treatment programs reduce sex offender recidivism. A notified community may prevent sex crime with greater attention and caution.
The Act requires a sex offender, who is any person convicted of a “sexual offense” listed under Correction Law § 168-a(2) or “sexually violent offense” listed under Correction Law § 168-a(3), to register with the Division of Criminal Justice Services within ten calendar days after being discharged from incarceration, paroled under Correction Law § 168-f, or placed on probation under Correction Law § 168-d. Sex offenders who were already on parole or probation as of the effective date of the Act were also required to register under Correction Law § 168-g.
To Be Cont….
Stephen Bilkis & Associates in coordination with New York Sex Offense Attorneys and New York Sexual Abuse Attorneys are experts in these kinds of litigation. Question regarding the case mentioned above may be posed at our toll free number or you may visit our offices near you. A team of well-seasoned lawyers will be glad to assist you.