This is a proceeding wherein the defendant, RJ, is a convicted sex offender pursuant to Correction Law § 168-a having pled guilty on 6 April 1994, to one count of Attempted Rape in the First Degree, a lesser-included crime of Count I of the Indictment charging Rape in the First Degree under Penal Law § 130.35(3), commonly known as “statutory” rape. All other charges in the Indictment, one count of Sexual Abuse in the First Degree under PL § 130.65(3) and 2 counts of Endangering the Welfare of a Minor, are also based upon the age of the victim. There are no allegations of forcible compulsion per se. Defendant has challenged his proposed “moderate” risk level designation under the Sex Offender Registration Act as not consistent with the facts of his case and his due process rights.
Correction Law Article 6-C, the Sex Offender Registration Act, effective 21 January 1996, modeled after New Jersey’s “Megan’s Law”, 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 as held in People v. Cropper.
The Act requires that sex offenders be assessed a “risk level” at the time of sentence or prior to release from incarceration. The sentencing court bears the responsibility to make such determination either initially or, for incarcerated offenders, following receipt of the recommendation of a statutorily-created Board of Examiners of Sex Offenders whose duty it is to evaluate the probability of recidivism on the part of the offender based on certain statutory criteria contained in Correction Law § 168-l(5). The offender is entitled to notice of the risk evaluation proceeding and may request a hearing.
The court is of the opinion that the Act contains several procedural anomalies which have created confusion in implementation and interpretation.
On 5 March 1993, RJ was arrested and charged with Rape in the First Degree under Penal Law § 130.35(3), Sex Abuse in the First Degree, and Endangering the Welfare of a Child based upon the complaint of ten-year old JJ who stated the defendant had removed her clothing, spread her legs, and placed his penis inside her vagina. He later gave her five dollars to keep secret what had happened. The Sex Abuse charge was dismissed upon a technical error in the Grand Jury presentation.
The defendant was also charged in the same indictment with endangering the welfare of a child GG, age 15, who was photographed by the defendant, both with her consent and surreptitiously, in her underwear following her refusal of the defendant’s requests for “sexual contact.” There was no admission to this accusation although the minutes of GG’s Grand Jury testimony and one of the photographs submitted by the District Attorney do provide the necessary clear and convincing evidence that such incident took place.
On 6 April 1994, the criminal defendant pled guilty to Attempted Rape in the First Degree with respect to the allegations concerning JJ. The then-58-year-old defendant, a live-in friend of JJ’s grandmother with whom both JJ and GG also resided, admitted he had “had sex” with JJ and knew she was “under eleven.” On 18 April 1994, the defendant was sentenced to one and a half to four and a half years incarceration. Defendant was released from prison on 1 March 1996.
To Be Cont….
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