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Family Court Act § 380.1(2)

This is a proceeding wherein the defendant, JC, was convicted, upon his plea of guilty, of sexual abuse in the first degree. In evaluating the defendant for registration as a sex offender pursuant to Correction Law article 6–C, the Sex Offender Registration Act, the New York State Board of Examiners of Sex Offenders assessed the defendant as a presumptive level two sex offender based, in part, upon his juvenile delinquency adjudication when he was 13 years old. After a hearing, the Supreme Court granted the People’s application for an upward departure to risk level three.

Herein, the court addresses the issue of whether the Supreme Court’s consideration of the defendant’s juvenile delinquency adjudication was permissible as evidence of the defendant’s age at the time of his first sex offense. For the reasons set forth below, the court concludes that the consideration of the defendant’s juvenile delinquency adjudication was improper.

On 12 January 2009, the Board prepared a Risk Assessment Instrument containing the Board’s recommendation to the Supreme Court regarding the defendant’s appropriate risk level designation under SORA. In the RAI, the Board assessed a total of 80 points, which placed the defendant at risk level two. The points were assessed under five risk factors, as follows: 10 points under risk factor 1 (“Used forcible compulsion”); 10 points under risk factor 2 (“Contact under clothing”); 20 points under risk factor 5 (“Age of victim 11 through 16”); 10 points under risk factor 8 (“Age at first act of sexual misconduct 20 or less”); and 30 points under risk factor 9 (“Prior violent felony, or misdemeanor sex crimes or endangering welfare of a child”).

Consequently, the Board recommended an upward departure from risk level two to risk level three on the ground that the defendant had been incarcerated three times and that prior attempts at both probation and parole had failed. In the case summary, the Board stated that the defendant was a sexually violent sex offender based upon his conviction of sexual abuse in the first degree under Penal Law § 130.65 and Correction Law § 168–a[3]. In addition, the Board noted that the underlying offense was the defendant’s third arrest for a sex offense and that two of those arrests involved forcible compulsion.

At the SORA determination proceeding, the People submitted, inter alia, the case summary in support of the Board’s assessment of 80 points. In support of their application for an upward departure, the People argued that this was the defendant’s third state prison incarceration and that prior attempts at parole had failed.

ToBe Cont….

New York Sexual Abuse Attorneys and New York Rape Attorneys at Stephen Bilkis & Associates are experts in these fields of law. Should you have questions regarding this case or yours, you may call our toll free number or visit our firm. New York Sex Offense Attorneys at our firm are at your beck and call.

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