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Sex Offender Registration Act… cont

In furtherance of same, a “quasi-regulatory” registration and notification scheme was devised with respect to individuals convicted of sex offenses, whereby these individuals would be classified based on a three-tier system. The Act provides that any individual convicted of an enumerated sex offense under Correction Law Section 168-d is automatically classified as a sex offender, mandating compliance with the minimum registration and notification requirements of the statute. The statute also creates a Board of Examiners to develop and promulgate guidelines to assess the risk of repeat offenses by an individual offender and the corresponding threat posed to public safety. The Board’s “Risk Assessment Guidelines”, last revised in November of 1997, establish the level of notification required of the offender as determined by a detailed point system assigning numerical values to fifteen (15) risk factors in four categories. An offender is assigned a presumptive level one (low risk), level two (moderate risk), or level three (high-risk) classification by calculating the cumulative point score on each of the categories. The Board’s Risk Assessment Guidelines and Commentary provide four “overrides” which, when present, result in a departure from the presumptive level, based on the point score, and instead impose a presumptive level three risk assessment designation. The override pertinent to this case is a prior felony conviction for a sex crimes. The Board treated factors such as a prior felony conviction for a sex crime as overrides because, in their view, these factors provide compelling evidence that an offender poses a serious risk to public safety. The Board or Court may not depart from the presumptive risk level unless it concludes that there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines. The Board is also mandated to submit its sentencing recommendation to the sentencing court within sixty (60) days from the defendant’s release from custody “providing for one of three levels of notification”, based upon the perceived risk of re-offense. Individuals designated as “level three” are deemed to be “sexually violent predators”. These individuals are subject to the widest notification and dissemination parameters.

But for the stipulation by the People, the defendant would have received a presumptive risk assessment level three designation, based upon his prior felony conviction for a sex crime, and the absence of any mitigation warranting a departure from the override. In seeking to give legal force and effect to the parties’ stipulation, the Court has inadvertently abrogated to the parties a function that is exclusively within the province of the Court.

Given the above, and the policy mandates of the statute, the Court is mindful of the need to ameliorate the situation as it now stands. Since the risk level classifications are not properly incorporated within a sentence or judgment, they are not properly reviewable pursuant to C.P.L. 440. Moreover, even assuming that the SORA determination was considered as a part of a plea or sentence, the Court would not have inherent power to vacate a plea and sentence for other than to correct a ministerial or clerical error. However, within the context of SORA, at least one other Court has invoked its inherent power to correct its own records in order to remedy an inadvertent omission in failing to certify a sex offender as mandated by statute. In the instant matter, using the same rationale, the Court may correct its records and perform its duties under SORA by certifying the defendant as a risk level three offender, rather than a level two offender, based upon his felony conviction and the absence of any mitigation. The Court must do so by appropriately amending the applicable court records and commitment order.

By taking this measure, the Court is acting in compliance with the stated objectives of the statute in protecting the community from the risk of sexual victimization and in properly balancing the rights of the individual against the overriding interests of the many in public safety. The Court notes that it had not received the Board’s recommendation in this matter, which is dated August 14, 1998, (and which is mandated by Correction Law 168-l[6] within sixty [60] days of the defendant’s release), until August 16, 1998, several months following the defendant’s discharge. Accordingly, had it not adopted the stipulated classification, it would not have been able, in the absence of the aforesaid recommendation, to make a determination in compliance with Correction Law 168-n(1) and (2).

Accordingly, in the interest of completeness, public safety, and compliance with Correction Law 168-d(1), the Court certifies the defendant as a level three sex offender nunc pro tunc, to March 25, 1998, the date of his plea, and directs the amendment of the commitment order to include such certification nunc pro tunc to the date of his sentencing, also on March 25, 1998.

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