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Defendant Appeals Designation as Level 3 Sex Offender


This is an appeal from the order of the District Court of Nassau County, First District, entered November 14, 2003, deemed from a supplemental order of the same court entered July 20, 2010. The order, following a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6-C.

A Lawyer said that, defendant pleaded guilty to sex abuse in the second degree (Penal Law § 130.60 [2]) and endangering the welfare of a child (Penal Law § 260.10). At a hearing held pursuant to the Sex Offender Registration Act (SORA) Correction Law § 168-n, the People submitted clear and convincing evidence of defendant’s out-of-state felony conviction of a sex crime under Maryland Annotated Code, article 27, § 464B. The People also submitted an assessment instrument prepared by the Board of Examiners of Sex Offenders recommending that defendant be designated a level three sex offender based upon the automatic override factor of an out-of-state felony conviction. The District Court adopted the Board’s recommendation and designated defendant a level three sex offender.

The issue in this case is whether defendant’s designation as level three sex offender by the Board is proper.

SORA provides three levels of registration and notification depending on the risk of reoffending. Level one, the lowest level, requires local law enforcement to be notified of an offender’s whereabouts. Level two is assigned to sex offenders with a moderate risk of committing another sex offense. It allows local law enforcement agencies to disseminate information about an offender to any entity with a vulnerable population. Those entities, in turn, may disclose such information at their discretion. The information includes the name and photograph of the offender, his approximate address and the address of any institution of higher education he attends. The third and highest level applies to individuals with a high risk of reoffending. It provides for disclosure of the same information applicable to level two offenders, with the addition of the offender’s exact address, place of employment and name of his school. Information as to all sex offenders is available to the public via a toll-free number and on the Internet as to level three offenders. Level one and two offenders previously were required to register annually for 10 years with the Division of Criminal Justice Services. As of January 2006, level one offender is subject to a registration period of 20 years and level two offenders are subject to lifetime registration. Level three offenders and offenders designated as sexual predators, sexually violent offenders or predicate sex offenders must register annually for life.

The Court held that, defendant’s contention that the District Court erred in relying on the automatic override for the prior Maryland felony sex crime conviction to find that he was a level three sex offender is unpreserved for appellate review. In any event, the contention is without merit. A defendant may be classified as a predicate sex offender based upon a conviction in a foreign jurisdiction where the out-of-state offense includes all the essential elements of an offense that is subject to registration in New.

The out-of-state felony conviction under Maryland Annotated Code, article 27, § 464B was a sex offense which arose from defendant rubbing his penis against the buttocks of a six-year-old male victim. This act would constitute the crime of sexual abuse in the second degree if committed in New York, and is a registerable offense under SORA. Thus, the automatic override to a level three sex offender designation, irrespective of the assessment of points scored on the risk assessment instrument, was warranted.

Defendant’s remaining contention that the Board of Examiners failed to assess points in the risk assessment instrument to designate defendant as a level three sex offender is improperly raised for the first time on appeal.

Accordingly, the order designating defendant a level three sex offender is affirmed.

Sex Offender Registration Act 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. The Act requires that sex offenders be assessed a “risk level” at the time of sentence or prior to release from incarceration. The offender is entitled to notice of the risk evaluation proceeding and may request a hearing.

If you have been indicted of a sex crime and will be undergoing SORA proceedings, you will need the help of a Nassau Sex Crime Attorney and/or Nassau Criminal Attorney in order to represent you in the said proceedings. Stephen Bilkis and Associates can help you, call us.

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