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NY Court Reviews Risk Assessment Level of Defendant Under SORA Guidelines


Michael H was found guilty of six counts of first degree sodomy, one count of attempted first degree sodomy, two counts of second degree sodomy and one count of first degree sexual abuse. Following his conviction, the Board of Examiners of Sex Offenders recommended designating Mr. H as a risk level three sexually violent offender upon his release. Mr. H’s criminal defense lawyer requested a risk assessment hearing to determine whether he should be assigned to risk level two based on the evidence.

According to trial records, Mr. H was convicted on sex crimes charges for committing improper sexual acts with five boys, aged 11 to 15. Apparently, Mr. H had convinced the boys to run away from home and go to a shack in the woods near Pelham Bay, where the sexual offenses occurred. At the time the sexual acts were committed, Mr. H was 19. He received a sentence of 8 1/3 to 25 years with a release date of November 7, 2011.

On October 23, 2003, the Board of Examiners of Sex Offenders submitted a risk assessment which recommended classifying Mr. Hernandez as a sexually violent offender based on score which was calculated by assigning a certain number of points for specific details of his crimes. Mr. H’s score totaled 165 points and was broken down accordingly: 10 points for use of force; 25 points for sexual intercourse and/or aggravated sexual abuse with the victim; 30 points for more than three victims; 20 points for a continuing act of sexual misconduct; 20 points for the victims being under age 16; 10 points for Mr. H being under age 20 at the time the crimes occurred; 30 points for a prior violent felony or misdemeanor sex crime conviction; 10 points for the prior crime occurring less than three years before the most recent acts; and 10 points for unsatisfactory conduct while incarcerated.

After calculating his risk level, the Board created a case summary based on a review of Mr. H’s file, including information gathered during the pre-sentencing investigation, his prior criminal history and his behavior since being imprisoned. According to the case summary, Mr. H was adjudicated as a youthful offender for a weapons offense in 1986 for which he received five years probation. While on probation, he was arrested for the sex crimes for which he was convicted. Specifically, Mr. H sodomized and sexually abused the five young boys over a period of two weeks. The sexual abuse of the minors involving fondling, as well as oral and anal sodomy of at least one victim. One of the boys testified that Mr. H kept a knife in plain sight while the sex acts occurred and threatened to kill their families if they told on him. The boys also said that Mr. H had told them he had satanic powers and could control them. In addition, Mr. H incurred approximately 20 different violations while incarcerated.

Mr. H’s criminal defense attorney argued that despite the score established by the risk assessment, his client is not a threat to the community at large and should not be branded as a sexual predator. Specifically, the defense noted that since being imprisoned, Mr. H overcame a heroin addiction and became engaged to his fiancĂ©e. The defense also cite his age as an indication of his increased maturity level. The prosecution argued that these claims have no bearing on the outcome of the risk assessment and that they are not sufficient evidence to warrant a lesser risk level. The Bronx County Supreme Court was charged with deciding the issue.

The court first looked at the Board’s guidelines for determining what level of risk a sex offender may pose upon release and the likelihood of a repeat offense. Using the scoring system, the Board typically makes a recommendation as to whether an individual should be designated as a sexual predator, sexually violent offender or predicate sex offender. The risk level assigned to an offender determines what information can be shared with the public about his crimes and current location. The Board uses 15 separate factors in four categories to calculate an offender’s risk level. A score of 110 or higher leads to an assignment of risk level three.

In Mr. H’s case, the court was asked to determine whether he qualified as a level two risk rather than a level three. Risk level three is typically reserved for cases where the risk of a repeat offense is especially high. Offenders assigned this level will have their exact address and place of employment made available to the public.

The court examined the information used to calculate Mr. H’s score and considered the guidelines established by the Board of Examiners of Sex Offenders. Under the Sex Offender Registration Act (SORA), any individual who is convicted of first degree sodomy, attempted first degree sodomy or first degree sexual abuse is considered to be a sexually violent offender. In Mr. Hernandez’s case, he was convicted of all of these crimes. Based on the crimes he was convicted of, his prior criminal history, the age of the victims, Mr. H’s age and the fact that the crimes were ongoing, the court held that the Board’s initial risk level assessment was correct. Accordingly, his classification as a risk level three sexually violent offender was upheld.

Sexual offenses are considered to be serious offenses in New York state. A conviction for a sex crime such as indecency with a minor, possession of child pornography or child sexual abuse can not only land you in prison but leave you branded as a sexual predator for the rest of your life. If you’ve been charged with sodomy, molestation or any other type of improper sexual contact, you need to speak with an experienced New York criminal defense attorney.

The law firm of Stephen Bilkis and Associates specializes in handling cases involving sex crimes. Our expert team of criminal defense lawyers is committed to proving your innocence and aggressively defending your rights. Call 1-800-NY-NY-LAW or stop by one of our New York area offices to discuss your case. Don’t wait another day to get the expert legal representation you need to fight a sex crimes charge.

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