The case summary then details the defendant’s criminal history. He was arrested in 1993, at age 16, for Burglary in the Second Degree, but there is no disposition noted in the case summary. There is a claim in the case summary that “he was placed on probation from February 1994 to February 1997 in both Tompkins and Cayuga Counties” but there is no proof before this Court of the reasons for probation or any conviction to sustain the sentence. The case summary also alleges that he was convicted of criminal mischief twice in 1995 and sentenced to probation for the second offense. Critically, he was charged—but never indicted—with Rape in the Second Degree in 1995 and eventually convicted of Sexual Misconduct in April 1998.
A New York Criminal Lawyer said that, after those convictions, the case summary alleges that the defendant was convicted in 1999 of Driving While Ability Impaired and in 2009 for Driving While Intoxicated and sentenced to 89 days incarceration.
In the hearing before this Court, defense counsel and district attorney argued over whether the government had provided clear and compelling evidence that: (1) forcible compulsion was used against this victim, (2) intercourse occurred during the crime, (3) the victim was “physically helpless” at the time of the crime, (4) the victim was a stranger to the defendant, and finally (5) whether the defendant’s prior convictions for alcohol-related driving offenses were sufficient to justify a finding of drug and alcohol abuse.
The issue in this case is whether defendant’s designation as Level 3 sex offender under New York’s Sex Offender Registration Act (“SORA”) is proper.
At a SORA hearing, the People bear the burden of establishing the factors supporting the proposed risk level by clear and convincing evidence. The clear and convincing standard acts requires a “high order of proof” and acts as a “weighty caution upon the minds of judges and forbids relief whenever the evidence is loose, equivocal or contradictory.” This Court must, before drawing any conclusions, find it “highly probable” that an alleged activity occurred.
The statute details that case summaries, prepared by the Board, and “reliable hearsay” can be considered by this Court in determining whether the government has met its burden of proof. Furthermore, facts proven at trial or at a plea are deemed established by clear and convincing evidence. The responsibility for the final assessment of factor values and the overall determination of a defendant’s sex crime offender level lies with the court. While recommendations of factor assessments by the Board may be helpful, this court is not constrained by those assertions.
To Be Cont…..