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The defendant was convicted on July 26, 2004

The defendant was convicted on July 26, 2004 of sexual abuse in the first degree, a class D violent felony sex crime under Penal Law § 130.65 (1). A Lawyer said that, on November 24, 2008 a hearing was held to determine the defendant’s risk level pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]). The County Court designated the defendant a level three sex offender based on a presumptive override for a prior felony conviction of a sex crime. A source said that defendant appealed from the order of the County Court, Nassau County, rendered November 24, 2008, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

The issue in this case is whether the County Clerk erred in designating defendant as level three sex offender.

The Court held that the County Court concluded, incorrectly, that the application of a presumptive override, based upon the defendant’s prior felony conviction of a sex crime, was mandatory and that the court did not have discretion to depart from the automatic override which placed the defendant in the risk level three categories. Although the defendant made it clear that he was seeking a downward departure, his counsel stated on the record: “What I explained to my client is that this isn’t a departure. He can’t get a level two under a mandatory override. There is no choice based on the fact he had a prior felony conviction for a sex crime. It’s mandatory, required by law; that we can’t get level two even if we want to.” Thereafter, in response to the defendant’s application for a level two risk assessment, the court stated that it had no choice because it was a “mandatory override.”

Although the defendant’s prior felony conviction of a sex crime raised his presumptive risk level from level two to level three, the court is not mandated to apply the override but may, in appropriate circumstances, impose a lower risk level than that suggested by the risk assessment instrument (hereinafter RAI) where the court concludes that the factors in the RAI do not result in an appropriate designation. The risk level calculated from aggregating the overrides is `presumptive’ because the Board or court may depart from it if special circumstances warrant. The ability to depart is premised on recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Not to allow for departures would, therefore, deprive the Board or a court of the ability to exercise sound judgment and to apply its expertise to the offender”. Thus, the role of the court is to examine all relevant evidence and not merely adopt the recommendation set forth in the RAI.

The Court’s failure to correct defense counsel’s erroneous characterization of the override as mandatory rather than presumptive, and the court’s failure to apply the correct “presumptive” standard, deprived the defendant of the opportunity to present mitigating circumstances in support of his application for a downward departure. Under these circumstances, the matter must be remitted to the County Court, Nassau County, for a new hearing and determination at which the court shall indicate on the record its findings of fact and conclusions of law. In light of this determination, the defendant’s remaining contentions need not be addressed.

Accordingly, the Court ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the County Court, Nassau County, for a new hearing and determination in accordance herewith.

Under the Correction Law Article 6-C, the Sex Offender Registration Act, that took effective on January 21, 1996, modeled after New Jersey’s “Megan’s Law”, was meant to address the need to protect the public from the risk of repeat offenses by perpetrators of sex crimes, deemed inherently susceptible to recidivism.

If you are involved in a sex crime or sex abuse offense, there is a need for the representation of a Nassau Sex Crime Attorney and Nassau Criminal Attorney in order to determine whether your designation under SORA is correct. Call us at Stephen Bilkis and Associates for further information.

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