On 12 May 1997, the defendant appeared in response to notice and was appointed counsel. Challenging his recommended assessment at risk level 2, pursuant to Correction Law § 168-n(3). On 25 August 1997, the defendant requested a hearing. A full hearing was held on 17 December 1997.
The defendant submitted the Board’s Risk Assessment Guidelines in effect at the time of Defendant’s evaluation, dated January 1996, the Case Summary and attached Probation Pre-Sentence Report and Defendant’s Case History from the Division of Criminal Justice Services which was also used in his Board evaluation and which erroneously listed rape charges with forcible compulsion for the crimes at issue in this proceeding.
The defendant has a total of eighty-five points as follows: 10 points for use of forcible compulsion; 25 points for “sexual intercourse, deviate intercourse, or aggravated sexual abuse, not ‘statutory rape’; 20 points for two victims; and 30 points for a victim under 10 years of age. Defendant had no criminal history and received no additional points for “Past Offense Behavior” or “Release Environment.” No points were added under Factor 14, “Supervision Following Release,” because, at the time, Defendant was to be supervised by a parole officer with expertise in handling sex offenders. Release without supervision warrants the addition of 15 points. Since Defendant is no longer under supervision, the District Attorney has suggested that 15 points should be added to Defendant’s recommended risk factor score of 85. His Board-recommended “Presumptive Risk Level” is 2, moderate. There is no indication on the Instrument suggesting “override” or “departure” from the level recommended based upon the numerical scoring. Scores between 0 and 70 points indicate low risk, 75 to 105 points represent moderate risk, and 110 to 130 points is high risk.
The defendant challenges the issue with the allocation of ten points for forcible compulsion, noting that the charges were based exclusively on the age of the victim and contain no allegations of force. He also challenges the allocation of 20 points for two victims, noting that only the charge of Endangering the Welfare of a Minor relates to a separate victim, for which there was no admission or conviction. Defendant contends that this crime is not one of those listed in the statute as a “sex offense” and should not, therefore, be considered in determining his risk level.
If the defendant to succeeds in his arguments, he would become a level one offender according to the Board’s scheme of assessment.
It is to be noted that New York’s Sex Offender Registration Act, Correction Law § 168-a(3), defines a “sexually violent offense” as “a conviction of or a conviction for an attempt to commit any of the provisions of sections 130.35, 130.50, 130.65, 130.67 and 130.70 of the penal law.” A “sexually violent predator” is “a person convicted of a sexually violent offense or a sex offender who suffers from a mental abnormality that makes such person likely to engage in predatory sexual conduct” under Correction L. § 168-a(7).
To Be Cont….