The defendant’s counsel argued that the assessment of 10 points under risk factor 8, regarding the age of the defendant at the time of his first sexual misconduct, was improper. The defendant submitted an affidavit which discussed the facts surrounding his 1984 juvenile delinquency adjudication, which formed the basis for the assessment of the 10 points under risk factor 8. The defendant averred that in 1984, when he was 13 years old, he was at a party with three older individuals that he knew. Those men were approximately 17 or 18 years old. The men told him to wait while they went inside a park. Inside the park, the men attacked a woman. The defendant stated that while he admitted to acts that would have constituted attempted rape if he had been an adult, he was not an active participant in the attack on the woman and never came into physical contact with her during the attack by the men. The defendant argued that the use of a juvenile delinquency adjudication for an upward departure was prohibited by Family Court Act § 380.1(2), which disallowed the use of such an adjudication for, among other things, preventing legitimate employment.
The criminal defense counsel further contended that the People failed to meet their burden of establishing that the circumstances of the case warranted an upward departure to risk level three. Moreover, defense counsel argued that the People could not show that an upward departure was warranted based only upon the contents of the defendant’s rap sheet and the allegations against the defendant in the juvenile delinquency proceeding.
The prosecutor, on the other hand, argued that the Family Court Act was inapplicable, as the instant matter was a SORA proceeding. The prosecutor noted that the Board’s SORA Guidelines provide that prior crimes include “criminal convictions, youthful offender adjudications and juvenile delinquency findings.” The prosecutor contended that she could not understand why the defendant would be adjudicated a juvenile delinquent based upon his admission to attempted rape in the first degree if, as alleged in his affidavit, all he did was stand outside of a park. She argued that the Guidelines indicated that the age of an offender at the time of his or her first sex crimes is a factor associated with recidivism since those who offend at a young age are more prone to reoffend.
The Supreme Court found that clear and convincing evidence supported the assessment of 80 points against the defendant. The Supreme Court specifically found that the defendant’s juvenile delinquency adjudication could be utilized for scoring under the SORA regulations. Further, the Supreme Court found that the People met their burden of demonstrating, by clear and convincing evidence, that there should be an upward departure from risk level two to risk level three.
To Be Cont…