The Board consists of five members who are employees of the executive branch of government appointed by the Governor. It is one of the responsibilities of the Board, applying factors which the Board has adopted, to “make a recommendation to the sentencing court as to whether such sex offender warrants the designation of predicate sex crimes offender. In addition, the guidelines shall be applied by the board to make a recommendation to the sentencing court providing for one of the three levels of notification”.
With regard to designating an offender a “predicate sex offender,” the statutory language clearly places the Board in the position of recommending such designation and the court determining whether the recommendation warrants the designation. If the court determines that an offender is not a “predicate sex offender,” the Board’s recommendation may be ignored. With respect to determination of risk level, the People contend that the court must apply the risk level guidelines to determine the level of notification, with the People arguing that the Board’s recommendation of risk level three is appropriate.
Inherent in this contention is that the court, in determining risk level, must operate within one of the three risk levels set forth in the statute. This would fly in the face of the clear statutory language of Correction Law § 168-l (6) and, additionally, usurp the role of a court in reviewing any administrative agency action.
It is certainly within the power of the Legislature to preclude judicial review of agency action and the Legislature has, on rare cases, taken such action. In the absence of a clear legislative intent, however, such preclusion will not be found.
The role of the Board is, therefore, to recommend. It is within the power of the court to make a determination based on that recommendation.
If either the People or the sex offender disagrees with the Board’s recommendation in the sentencing court, the parties shall be afforded a hearing. In such a hearing, “[t]he sentencing court has wide discretion with regard to the conduct of the hearing and the type and nature of the testimony and evidence to be considered. Formal rules of evidence are inapplicable to this type of proceeding and reliable hearsay evidence may be utilized to support the court’s final determination.”
At the criminal hearing, the People bear the burden of proving the facts supporting the determination sought by clear and convincing evidence and “in making the determinations the court shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations. Facts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated.”
Since the 1991 convictions in this case were vacated with the consent of the North Carolina prosecutor and no facts were adduced at the entry of the plea in 2004, there is a need for the People to shoulder the burden of establishing the facts to support the Board’s recommendation by clear and convincing evidence. The facts cannot be deemed as established.
A person is a predicate sex offender if he or she has been convicted of an offense set forth in Correction Law § 168-a (2) or (3)3 and has been previously convicted at any time of any such offenses. The predicate offense in this case is the 1977 conviction of crime against nature.
In order for an out-of-state conviction to qualify as a “predicate offense,” it must include all of the essential elements of a comparable New York sex offense or a felony in the other jurisdiction for which the offender is required to register in such jurisdiction.
A review of the North Carolina Rape Offender Registration Act discloses that there is no requirement to register for convictions of crime against nature
As previously noted, crime against nature provided as follows: “If any person shall commit the crime against nature, with mankind or beast, he shall be guilty of a felony, and shall be fined or imprisoned in the discretion of the court.”
This statute has been, over the years, applied to cover conduct constituting anal and oral sexual conduct and sexual conduct with animals. Since the underlying facts of this prior conviction relate to the insertion of a foreign object into the rectum of an animal, the closest analogy to a New York sex crime listed in Correction Law § 168-a (2) is sexual misconduct, which, in pertinent part, provides that a “person is guilty of sexual misconduct when: he or she engages in sexual conduct with an animal.” “`Sexual conduct’ means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact”; “aggravated sexual contact” relates to sexual contacts with children and “`sexual contact’ means any touching of the sexual or other intimate parts of a person not married to the actor”.
Accordingly, the North Carolina conviction in 1977 for crime against nature as it relates to this respondent does not qualify as a “predicate offense” since it does not include all of the essential elements of a comparable New York sex offense.
The court determines that the respondent is not a predicate sex offender.