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SORA Guidelines

At approximately 6:30 P.M., the defendant was riding a bicycle toward a woman who was jogging on the bridle path in Central Park in Manhattan. After he passed her, the defendant got off the bicycle, made kissing noises, and then lunged at the woman and attempted to grab her thighs. She managed to escape the defendant’s grasp and ran away, with the defendant in pursuit for a short distance. The woman hurried to the Central Park Police Precinct, where she reported the encounter.

She then accompanied three police officers as they patrolled the park by car, looking for the defendant. They soon spotted him running down another woman on his bicycle. The police stopped the defendant and arrested him; this second female was crying hysterically and shaking. The 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. The defendant also told the police that he had chased after a third woman, who got away from him.

The 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, an interviewer from the New York City Criminal Justice Agency (CJA) assessed his risk of flight. The CJA interviewer’s report stated that the 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, the defendant was not recommended for ROR (release on recognizance) because he was a high risk for FTA (failure to appear).

On January 17, 2006, the 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, the defendant pleaded guilty to the sex crime in exchange for a sentence of six months in jail, to run concurrently with a 10-year period of probation. The defendant was informed that as a consequence of his plea he would be required to register as a sex offender pursuant to SORA.

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 not domiciled and unemployed; and reported that he was currently not domiciled and was unable to provide an address or a shelter as to where he was residing. Domestic Violence was not involved.

Prior to the SORA hearing, the People prepared and provided the court and the defendant with the RAI, as required by Correction Law. The People sought to assess the defendant points on the RAI, thus classifying him presumptively as a level two sex offender. As relevant here, the People assigned the defendant 10 points under risk factor 15, Living or Employment Situation in the SORA Guidelines promulgated by the Board of Examiners of Sex Offenders. 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. The accompanying commentary expands on the meaning of inappropriate as 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 (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary.

At the SORA hearing, the criminal defense counsel asserted that the defendant should not be assigned points under risk factor 15. First, he stated his understanding that the 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 sexually abused in the past.

The People advanced a less restrictive reading of risk factor 15. The prosecutor noted that the 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 the defendant access to victims it also talks about situations where there is a reduced probability of detection and given that the defendant has no community ties, if he were to commit this type of sex crimes 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.

The 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, the 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, 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 the defendant is not 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 the defendant.

The 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 the defendant’s classification to level one.

When sex offenders get away with the crime they committed, they are likely to commit such crime over again. If you want to permanently put someone in jail so they would not be a threat to others, approach the New York Sex Crime Attorney together with the NYC Criminal Lawyer from Stephen Bilkis and Associates and discuss the most effective strategy you can use in court.

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