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Sex Offender Petitions the Court to Lower His SORA Risk Level – People v. Simmons, 170 A.D.3d 904 (N.Y. App. Div. 2019)


This case looks at how the court determines the sex offender status of a convicted felon.  Under New York’s New York Sex Offender Registration Act (SORA), sometimes referred to as Megan’s Law, those who are convicted of most sex crimes and other serious felonies are required to register with the New York Division of Criminal Justice Services (DCJS) for at least 20 years.

Those who are required to register are classified into one of three different risk levels.  The restrictions that are placed on registrants and the length of registration depend on the registration level. A Level 1 classification is given to offenders who present the lowest level of risk of reoffending while Level 3 is given to those who present the highest level of risk of reoffending.  Risk levels can be raised or lowered. For example, if an offender commits another crime or violates probation or parole, the court may raise the offender’s risk level.  If an offender feels that his (or her) risk level should be lower, he can request a hearing to request that the court lower his risk level.  An offender can even request that the court completely relieve him from the registration requirements.

In Simmons, the defendant was convicted of attempted rape in the first degree and two counts of murder in the first degree and was sentenced to 25 years to life in prison.  Prior to his release from prison, a hearing was held regarding his sex offender registration status.  The defendant was designated a level 3 sex offender.  He received this designation because of the “presumptive override” that was applicable in his case because his crime resulted in the death of the victim.

The Risk Assessment Guidelines used by the Board of Examiners of Sex Offenders include four overrides that automatically result in a presumptive risk assessment of level three.  It is up to the State to prove the applicability of a particular override by clear and convincing evidence. If the State meets its burden, the judge has no choice but to designate the offender as a Level 3.

The reason that an offender would want a lower risk level  designation is that the reporting requirements for Level 3 offenders are much more strict and burdensome than for Level 1 or 2 offenders. Under Level 3 and Level 2 restrictions the offender will have to register for life, whereas Level 1 offenders must register for only 20 years. Level 3 offenders must personally verify their addresses every 90 days with law enforcement and must annually report in person to a local police agency to have a current photograph taken.  Level 1 and 2 offenders have to have their photograph taken every 3 years. Level 2 and 3 offenders must report the address of their employer, while Level 1 offenders do not. In addition, information about Level 2 and 3 offenders is available on the DCJS website, while Level 1 offender information is not.  Failure to perform any of the registration obligations is a felony.

In Simmons, the State sought to establish the applicability of override 2: the infliction of physical injury or the causing of death. As the defendant was convicted of first-degree murder, the State established by clear and convincing evidence the applicability of the second override.  Still, the court gave the defendant the opportunity to present evidence of a mitigating factor that would establish a lower likelihood of reoffending that was not already taken into consideration by the Risk Assessment Guidelines.  If the defendant can meet his burden, then the court must decide if it wants to use its discretion to assign the defendant a lower level of risk. In Simmons, the defendant failed to meet his burden of presenting mitigating factors.

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