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Appellant Challenges Level 2 Sex Offender Designation


This case was an appeal from the Supreme Court, where the defendant was categorized as a Level Two sex offender.

The defendant had originally pleaded guilty for the use of a child in a sexual performance (violation of Penal Law 263.05). Before being released from prison the Supreme Court held a SORA hearing. After the hearing, the court gave the defendant 20 points for risk factor 13, which established him as a Level Two sex offender.

The defendant argues that the court was in error.

The court assessed him 20 points under risk factor 13. This risk factor deals with “conduct confined or under supervision.” According to SORA, points are assessed if it is deemed that the defendant has not adjusted well to confinement or supervision or has also been involved with inappropriate sexual content as set forth in the SORA guidelines. The examples of inappropriate sexual conduct include possession of pornography or acting out sexually.

The people have the burden of proving through clear and convincing evidence the facts supporting the determination that he is seeking (People v Pettigrew 14 NY3d 406, People v Parris 153 AD3d 68, Correction Law 168-n[3]. In the guidelines, it states that in any given case lies with the court (People v Wyatt 89 AD3d 112, People v Lawson 90 AD3d 1006).

In this case, the defendant committed a disciplinary infraction for attempting sexual relations with an on-duty corrections officer (People v Bulugia 109 AD3d 803, People v Faulkner 151 AD3d 601) Risk factor 13 includes any type of behavior that gives rise to sexual conduct as defined in Penal Law 130.20. Therefore, the court determined that the defendant was properly assessed.

The defendant argues that the Supreme Court didn’t properly decide risk request to be assessed as a Level 1 offender. It was determined, however, that a court is allowed to exercise their discretion. Under the guidelines, the court must follow three steps to decide if they should depart from a particular risk level.

The first step is to decide if there were any mitigating circumstances, and were they taken into account in the guidelines. The second step is to determine if the defendant has met the burden of proof (People v Gillotti 23 NY3d 861).

If these steps were satisfied, they may be granted a departure. However, the court still has discretion and will assess any mitigating or aggravating circumstances, keeping in mind the totality of the circumstances.

Here, the defendant contends that he has undergone treatment, he is remorseful for his offense and he has strong family support. He also cites a lack of a prior criminal history and a lack of substance abuse problems.

The court said, however, that a defendant’s exceptional response to treatment can be the reason for a downward departure (People v Washington 84 AD3d 910). But here, the defendant did not prove by a preponderance of the evidence that his treatment outcome was exceptional (People v Dyson 130 AD3 600)

The court said that other circumstances offered by the defendant were taken into consideration. The circumstances he presented, however, were adequately addressed in the guidelines or were simply not proven by the evidence provided. Because of this, the court lacked the discretion to order a downward departure of the presumptive risk level (People v Santiago 137 AD3d 765). The court correctly denied the defendant’s request.

2018 Slip Op 00855


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