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Correction Law § 168-d(3)…cont

The Board of Examiners developed a set of “Risk Assessment Guidelines” for determining an offender’s level of notification. The Sex Offender Registration Act: Risk Assessment Guidelines and Commentary was first issued by the Board of Examiners in January of 1996 and later revised in November of 1997. The guidelines provide a detailed, point-based system assigning numerical values to fifteen risk factors placed into four different categories relating to current offense, criminal history, post-offense behavior, and planned release environment. A presumptive risk level of 1 (low risk), 2 (moderate risk), or 3 (high risk) is calculated for an offender by adding up the points assigned to the offender in each category. However, the guidelines provide that the presumptive level can be departed from and a level 3 designated if any one of four overrides is found to be present by the Court. The four “overrides” that automatically result in a presumptive risk assessment level 3 are: “(i) a prior felony conviction for a sex crime; (ii) the infliction of serious physical injury or the causing of death: (iii) a recent threat to reoffend by committing a sexual or violent crime; or (iv) a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior.

The United States Constitution and the New York State Constitution provide that no person shall be deprived of life, liberty, or property without due process of law. Under the Fourteenth Amendment of the United States Constitution, procedural due process is a flexible concept. In determining which procedures are constitutionally required in a given situation, the United States Supreme Court has held that three factors must be balanced: (1) the nature of the private interest; (2) the risk of erroneous deprivation of that interest and the probable value of additional safeguards; and (3) the government’s interest in taking its action including the burden that any additional procedural requirement would entail as emphasized in Mathews v. Eldridge.

The Mathews test requires that a person be afforded notice and an opportunity to be heard and the nature of the proceeding should be appropriate to the nature of the case. What constitutes a “hearing” varies in different situations. A full evidentiary hearing is usually not required. In general, “something less” than a full evidentiary hearing is usually sufficient as held in Goss v. Lopez. Due process is satisfied if a party is given notice and the opportunity to present reasons, either in person or in writing, why a proposed action should not be taken. Notably, due process does not encompass the right to counsel in civil proceedings.

On the other hand, in criminal proceedings, due process applies to every critical stage of a criminal proceeding necessitating not only notice and an opportunity to be heard but also invoking the defendant’s right to counsel under the Sixth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment.

To Be Cont…

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