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Post-Offense Behavior

Bronx Sex Crimes Lawyer said that, following a jury trial in which he was found guilty of six counts of sodomy in the first degree , one count of attempted sodomy in the first degree , two counts of sodomy in the second degree , and one count of sex abuse in the first degree , pursuant to the Sexual Offender Registration Act (hereinafter SORA), the Board of Examiners of Sex Offenders recommends designating defendant as a risk level three sexually violent offender upon his release from custody. Although conceding that his total risk factor score is correct, defendant argues at a risk assessment hearing that the totality of the circumstances warrants a departure to a risk level two.

A Bronx Sex Crime Lawyer said that, on October 23, 2003, the Board submitted a risk assessment instrument. It recommends designating defendant as a sexually violent offender based on his convictions for sodomy in the first degree, attempted robbery in the first degree, and sex abuse in the first degree. It also recommends classifying defendant as a risk level three based on an assessed score of 165. Specifically, the Board assessed: 10 points for use of forcible compulsion; 25 points for sexual intercourse, deviate sexual intercourse or aggravated sexual abuse with the victim; 30 points for three or more victims; 20 points for engaging in a continuing course of sexual misconduct; 20 points for the age of the victims being between 11 and 16; 10 points for defendant being 20 years of age or less at the time of his first act of sexual misconduct; 30 points for a criminal history consisting of a prior violent felony, misdemeanor sex crime or endangering the welfare of a child; 10 points for the prior felony or sex crime occurring less than three years before the current incidents; and 10 points for unsatisfactory conduct while confined or supervised.

The Board then compiled a case summary “based upon a review of the inmate’s file which includes but is not limited to the pre-sentence investigation, prior criminal history and post-offense behavior”. This summary stated, in pertinent part, that: “In 1986, defendant was adjudicated a Youthful Offender for Criminal Possession of a Loaded Firearm, a sawed off rifle, and Theft of Services. As a result, he was placed on five years probation. While on probation for that offense, he was arrested for the instant sex offense for which he was convicted after trial. Regarding the sex offenses, [defendant], who was nineteen years old at the time, sodomized and sexually abused five young, runaway, boys who were between the ages of eleven and fifteen.

A Bronx Criminal Lawyer said that, defendant argues that despite the fact that he could not overcome his risk assessment score that places him as a level three offender, he is nevertheless not a threat to the community nor a sexual predator. In support of this contention, defendant notes that since being incarcerated in this matter, he has been married, is currently engaged for a second time, has overcome a heroin addiction, and is now much older than at the time he committed these acts. In response, the People contend that the above-mentioned facts do not warrant any departure from designating defendant a level three offender.

The issue in this case is whether the board erred in designating defendant as a risk level three sexually violent offender upon his release from custody.

Pursuant to SORA, the Board developed guidelines and procedures to assess the risk of a repeat offense by a sex offender and the threat that person posed to the public safety. Based on these factors, the Board recommends to the sentencing court whether a defendant warrants the designation as a sexual predator, sexually violent offender, or predicate sex offender as defined in Correction Law § 168-a (7), as well as which of three levels of notification the defendant should be assigned based upon “the risk of a repeat offense.”

The two risk assessment levels that are pertinent to the case at bar are a level two designation if the risk of repeat offense is moderate and a level three designation if the risk of repeat offense is high. The notification for these two levels differs in that a level three offender’s exact address and address of his place of employment may be disseminated, whereas a level two offender may only have his approximate address based on his zip code disseminated.
In determining the risk level, the Board has promulgated 15 factors that are divided into four categories. These factors are based on an individualized approach that is mandated by federal statute, and they are designed to “eschew per se rules that risk should be assessed on the basis of a review of all pertinent factors”. Under each factor the “court should look to the most serious wrongdoing in each category”, and only one of the options is chosen if any are applicable. If the aggregate score from all of these factors is at least 75 points but no greater than 105, the offender is presumptively a risk level two. If it is 110 or greater, he is presumptively a risk level three.

To Be cont….

If you want to question the SORA Board’s assessment in your case, seek the assistance of a Bronx Criminal Attorney and Bronx Sex Crime Attorney at Stephen Bilkis and Associates.

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