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New York Appellate Court Determines if Defendant is Entitled to Evidentiary Hearing Pursuant to Due Process Clause


The defendant was charged with two counts of Sexual Abuse in the First Degree, a D violent felony, and Endangering the Welfare of a Child, an A misdemeanor. A Lawyer said that, pursuant to a plea bargain agreement, the defendant pled guilty, under count one to the lesser charge of Sexual Abuse in the Second Degree, an A misdemeanor, and under count three to Endangering the Welfare of a Child, an A misdemeanor, in satisfaction of the indictment.

A source said that, prior to sentence, the Court notified the defendant 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, commonly referred to as “Megan’s Law”, 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.

A Lawyer said that, defendant argued 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 issue in this case is whether defendant is entitled for an evidentiary hearing in line of the due process clause, before the determination of the Board’s risk assessment on his sex crimes.

The Sex Offender Registration Act provides that in making the determination, the court shall review any victim’s statement and any materials submitted by the offender. The court shall also allow the sex offender to appear and be heard, and inform the sex offender of his right to have counsel appointed, if necessary”. The statute neither expressly mentions that the offender is entitled to any formal hearing; nor does it specify the offender’s right to call witnesses. Nor does the statute set forth the burden of proof to be imposed upon the defendant or the People. In fact, the statute is silent as to whether the People even have to be present at all when the court makes its determination. The purpose of the Sex Offender Registration Act was regulatory. 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 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. The public can 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 release’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 crimes with greater attention and caution.”

The Court said that 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, or placed on probation. Sex crime offenders who were already on parole or probation as of the effective date of the Act were also required to register. The statute also created a five-member Board of Examiners of Sex Offenders appointed by the Governor which authorized the Board to develop guidelines and procedures to assess the risk of a repeat offender and the threat posed to the public safety. The Board of Examiners developed a set of “Risk Assessment Guidelines” for determining an offender’s level of notification. The Sex Offender Registration Act: Risk Assessment Guidelines and Commentary was first issued by the Board of Examiners in January of 1996 and later revised in November of 1997. The guidelines provide a detailed, point-based system assigning numerical values to fifteen risk factors placed into four different categories relating to current offense, criminal history, post-offense behavior, and planned release environment. A presumptive risk level of 1 (low risk), 2 (moderate risk), or 3 (high risk) is calculated for an offender by adding up the points assigned to the offender in each category. However, the guidelines provide that the presumptive level can be departed from and a level 3 designated if any one of four overrides is found to be present by the Court. The four “overrides” that automatically result in a presumptive risk assessment level 3 are: “(i) a prior felony conviction for a sex crime; (ii) the infliction of serious physical injury or the causing of death: (iii) a recent threat to reoffend by committing a sexual or violent crime; or (iv) a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior.

Where an offender is to be sentenced to probation, notification varies depending on the numerical risk level assigned by the court in accordance with the guidelines established by the Board. If the sex offender is assigned a level one (low risk of repeating), only notification to law enforcement agencies is authorized. If the sex offender is assigned a level two (moderate risk of repeating), law enforcement agencies are notified and are authorized to disseminate relevant information which may include approximate address based on zip code, a photograph, and background information (including modus of operation and type of victim) to any entity with vulnerable populations. If the defendant is designated a level three (high risk of repeating), the sex offender shall be deemed a sexually violent predator. The level of notification is the same as that for a level two, except the law enforcement agencies may disseminate the sex offender’s exact address, and the offender is listed in the sexually violent predator subdirectory maintained by the Division of Criminal Justice Services.

Both the United States Constitution and the New York State Constitution provide that no person shall be deprived of life, liberty, or property without due process of law. In criminal proceedings, due process applies to every critical stage of a criminal proceeding necessitating not only notice and an opportunity to be heard but also invoking the defendant’s right to counsel. The right to counsel is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be attacked. But even in criminal proceedings, full-blown evidentiary hearings are not always required. Similarly, under New York statutory and case law, it is not mandated that a criminal defendant is always entitled to an evidentiary hearing. The language “opportunity to be heard” is still present in CPL § 510.20(2) for applications for recognizance or bail. Similarly, at the time of sentence, a defendant is given an “opportunity to controvert or to comment upon any fact” contained in a presentence report. Even though sentencing is a critical stage of a criminal proceeding, the full panoply of constitutional rights is not applied to the sentencing process.

The risk level classification procedure under Correction Law § 168-d for sex offenders receiving probation is more analogous to the due process requirements for sentencing. The statutory procedure for risk level classification allowing the sex offender “to appear and be heard” is more congruent to the language “opportunity to controvert” present in New York sentencing law and equivalent to the language of notice and “opportunity to be heard” associated with the general due process requirement. Both procedures do not contain statutory language requiring an evidentiary hearing, but leave the nature and extent of the inquiries to the discretion of the court.

However, there is a notable distinction between the risk level classification procedure and the sentencing procedure in New York. The risk level classification procedure of Correction Law § 168-d(3) is regulatory in nature and not penal as is the sentencing procedure under Criminal Procedure Law § 400.10. In fact, there is no statutory right to appeal a judicial determination of the risk level classification imposed by the court, and the Court of Appeals has declined to impose one; while sentences imposed by a court are subject to appeal pursuant to CPL § 450.30.

Therefore, the risk level classification procedure has less onerous implications than a sentencing procedure. Accordingly, the defendant should not be entitled to any greater due process rights than the defendant already has at the time of sentence. Concomitantly, any burden of proof to be imposed upon the People at a risk level classification procedure should be no greater than the burden imposed upon the People at the defendant’s time of sentence.

Due process requires that the sentencing court must assure itself that the information on which it bases its sentence is reliable and accurate and the burden of persuasion falls upon the People in order to ensure that an offender is not being sentenced on the basis of “materially untrue” assumptions or “misinformation”. A defendant’s due process rights at sentencing have been satisfied both in federal and state law by a preponderance of the evidence standard. Similarly, during the risk level classification procedure, the court may base its decision on the presentence report provided by probation, clinical assessments, victims’ statements, and any materials submitted by the sex offender. The court finds that due process requirements impose upon the People the ultimate burden of proving the reliability and accuracy of the information by a preponderance of the evidence in rebutting any allegations made by the sex offender during the proceeding. If the court is not satisfied with the inquiry, then a summary hearing could be imposed in the Court’s discretion allowing defense counsel to present witnesses.

The Court was provided with sufficient, reliable, and accurate information to determine the defendant’s risk level allocation as level 3 based upon the oral arguments presented by defense counsel and the People, the victim impact statements provided in the presentence report prepared by the Probation Department, the report from CAP Behavior Associates, the materials submitted by defense counsel, and the guidelines and Commentary prepared by the Board of Examiners. This determination is based upon the override provision (iv) contained in the risk assessment guidelines and commentary there has been “a clinical assessment that the offender has a psychological abnormality that decreases the ability to control impulsive sexual behavior.” An evidentiary hearing was not necessary. The People have met their burden of proof by a preponderance of the evidence that a risk level of 3 is appropriate and that the information presented to the Court is both reliable and accurate. The defendant’s proffered testimony involving the appropriate risk level the Court should designate impinges upon the province of the Court as the ultimate finder of fact. The Court is capable of rendering a determination without such assistance nor was there a need for clarification of the clinical assessment made since his report was clear on its face.

Accordingly, the Court finds the defendant to be classified as a risk level 3, a sexually violent predator, requiring the full notification procedures warranted by the Sex Offender Registration Act.

Due process is a constitutional right accorded to each individual. If you are charged or indicted with sex crimes, make sure to seek the representation of a Nassau Sex Crime Attorney or Nassau Criminal Attorney at Stephen Bilkis and Associates in order to defend your case.

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