Defendant, in February of 1995, in the Supreme Court, Suffolk County, entered pleas of guilty to sodomy in the second degree and sexual abuse in the first degree. The initial charges arose when defendant, during the summer of 1992, lured two young boys into his home for the purpose of engaging in sexual relations. The defendant took photographs of the victims.
A New York Criminal lawyer said that in January 1996, while defendant remained on probation, the Sex Offender Registration Act (hereafter referred to as SORA), became effective. The act requires convicted sex offenders, including those on probation at the time of its enactment, to register with the Department of Criminal Justice Services. Sodomy in the second is designated a “sex offense” while sexual abuse in the first degree is designated a “sexually violent offense”. A “sexually violent predator” is defined as any person convicted of a “sexually violent offense” or a sex crimes offender who suffers from a mental abnormality that makes such person likely to engage in predatory sexual conduct.
The law establishes three levels of community notification. A level one designation is the lowest level and provides for information to be given only to the enforcement agencies having jurisdiction over the individual. A level two, or moderate, designation provides notification similar to level one along with authorization to said agencies to disseminate relevant information including approximate address based on zip code, a photograph, background of the crime, type of victim and any special conditions imposed on the offender to any entity with vulnerable populations related to the nature of the offense committed by such sex offender. Level three, the high risk category, provides for the dissemination of the same information as for level two offenders, as well as the dissemination of the offender’s exact address. In addition, the information is required to be recorded in a subdirectory which, upon request, will be made available to the public.
As previously indicated, the Division of Parole or Division of Probation and Correctional Alternatives is designated to determine the duration of registration and notification of every sex offender on parole or probation on the effective date of the act. Said determination is to be made in accordance with the risk factors delineated in section 168-l. Section 168-l requires the Board of Examiners of Sex Offenders to develop guidelines and procedures to be used in assessing said risk factors. The Board prepares a checklist form from which the risk of repetitive behavior is determined by considering four groups of characteristics, viz., current offense, criminal history, post-offense behavior and release environment. Points are assessed for characteristics within each group.
In the case at bar a risk level assessment was conducted on defendant using the risk assessment checklist in compliance with section 168-g of the Correction Law. Defendant, who was assessed to be a level three offender, was requested to sign the sex offender registration form. Defendant, on the advice of counsel, refused to sign the form claiming that said form was inaccurate. Defendant claimed that the inclusion of force based upon the victims’ statements and the Board of Examiners’ risk assessment instrument was improper since the indictment and conviction did not indicate use of force. A review of defendant’s risk level assessment by the New York State Division of Probation and Correctional Alternatives resulted in no change. Thereafter, defendant was charged in the Supreme Court with a violation of probation due to his failure to register. Defendant was also charged in the Justice Court of Southampton with failing to register, an A misdemeanor. Defendant, in both forums, challenged the constitutionality of the act on various grounds. These are not white collar crimes.
Defendant maintains that his constitutional rights to procedural due process and equal protection of the laws have been violated by SORA and that its retroactive application constitutes an ex post facto law expressly prohibited by both the United States and New York State Constitutions.
The general rule, applicable to a challenge to legislation based on equal protection, is that the legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate State interest. The Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently from others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State Legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory inequality will not be set aside if any state of facts would reasonably support its justification. Marijuana possession was not charged.
The Legislature in enacting SORA stated as follows:
“The legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and that the protection of the public from these offenders is of paramount concern or interest to government. The legislature further finds that law enforcement agencies’ efforts to protect their communities, conduct investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders who live within their jurisdiction and that the lack of information shared with the public may result in the failure of the criminal justice system to identify, investigate, apprehend and prosecute sex offenders.
“The system of registering sex offenders is a proper exercise of the state’s police power regulating present and ongoing conduct. Registration will provide law enforcement with additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation promptly. It will allow them to alert the public when necessary for the continued protection of the community.
“Persons found to have committed a sex offense have a reduced expectation of privacy because of the public’s interest in safety and in the effective operation of government. In balancing offenders[‘] due process and other rights, and the interests of public security, the legislature finds that releasing information about sex offenders to law enforcement agencies and, under certain circumstances, providing access to limited information about certain sex crimes offenders to the general public, will further the primary government interest of protecting vulnerable populations and in some instances the public, from potential harm.
As the foregoing makes clear, the Legislature was deeply concerned with protecting the public from the risk of recidivism posed by sex offenders and with assisting the criminal justice system in identifying, investigating, apprehending and prosecuting sex offenders. In addressing these concerns, the Legislature had to formulate procedures encompassing offenders who were incarcerated as well as those on parole or probation. Since the incarcerated offenders posed no threat to the community and since they were under the direct control of the Department of Correctional Services, the Legislature was able to achieve its goal as to said offenders, while affording them an opportunity to have a hearing prior to a determination as to their status and level. On the other hand, the risk posed to the community by those offenders on parole or probation was more immediate.
As a result, the Legislature established a procedure wherein such offenders’ status and level were determined by the Division of Parole or Division of Probation and Correctional Alternatives. The offenders were given an opportunity to object to further registration by means of a petition to the sentencing court. Moreover, inasmuch as said offenders were already under the supervision of the agency rendering the assessment, the agency was already familiar with their backgrounds and personal histories. Since there existed a rational basis for the disparate classification procedures, defendant’s equal protection claim is not sustainable.
Defendant herein asserts that his right of procedural due process was violated since he was not afforded an opportunity to be heard prior to the Suffolk County Department of Probation’s determination relative to his classification and risk assessment level. An identical challenge was raised in a class action before the United States District Court for the Southern District of New York, the Court, after concluding that offenders in what he termed the “probation-parolee class” had a protected liberty interest which was interfered with, further concluded that the procedures utilized were inadequate. Although the interpretation of Federal constitutional questions by the lower Federal courts may serve as useful and persuasive authority, they are not binding as New York State courts have an independent responsibility to exercise their correlative adjudicative power on questions of Federal law. No drug was involved.
Generally, the courts have held that while one’s good name and standing, as well as the interest in protecting that reputation, may constitute a protected liberty interest, there must, in addition, be some other tangible element in order to raise the damage to one’s reputation to the level of a protected liberty interest. This “stigma plus” test is required to establish a constitutional deprivation.
In a case, the United States Court of Appeals for the Second Circuit applied the “stigma plus” test in upholding a challenge to the inclusion of claimant’s name on the New York State Central Register of Child Pornography Abuse and Maltreatment. The court therein found that the dissemination of claimant’s information to the list of potential employers in the child care field satisfied the “stigma” portion of the test. The court went on to find that requiring all child care providers to consult the central register and further requiring said providers to provide a written explanation in the event they wish to hire someone on the list, constituted a tangible burden on claimant’s employment prospect which satisfied the “plus” requirement of the test. In the case at bar, the categorizing of defendant as a “sexually violent predator,” when taken together with the attendant requirements as to registration and the dissemination of the names and personal information of the defendant, is sufficiently similar to the statutory provisions in the case law.
Having concluded that SORA impinges upon a protected liberty interest, it remains to be considered whether the procedural safeguards established by the State are sufficient to protect defendant’s right to due process. The fundamental requirement of due process is opportunity to be heard “at a meaningful time and in a meaningful manner”. Due process is not a technical concept with fixed content unrelated to time, place and circumstance. Rather, it is flexible and calls for such procedural protections as the particular situation demands.
It cannot be seriously argued that the defendant’s private interest in his liberty and reputation is not substantial. As indicated prior hereto, the defendant is subject to registration on an annual basis and verification of his address on a quarterly basis for a minimum of 10 years. In addition, defendant’s name and personal data will be maintained in a “sexually violent predator subdirectory” which shall be distributed to local police departments on an annual basis. Thus, as Judge Chin concluded, the defendant has a compelling interest in being accurately assigned a risk level classification.
The Suffolk County Department of Criminal Probation, pursuant to section 168-g, performed an initial risk classification and level assessment on defendant in accordance with procedures outlined in section 168-l. The defendant was classified a “sexually violent predator” and assigned to the level three risk category. Defendant’s risk level assessment was conducted by a supervisor for the Suffolk County Department of Probation and other members of the Board of Examiners of Sex Offenders.
A review of defendant’s risk level assessment was conducted by the New York State Division of Probation and Correctional Alternatives. The Division of Probation and Correctional Alternatives sustained the decision of the Suffolk County Department of Probation. Defendant also had the right to petition the sentencing court for relief from any further duty to register. Moreover, defendant could have instituted an article 78 proceeding to review the determination of the Division of Probation and Correctional Alternatives.
The Government’s interest in ensuring that the defendant be designated at the appropriate risk level is to protect the public from the danger of recidivism posed by sex offenders and to assist the criminal justice system to identify, investigate, apprehend and prosecute sex offenders. The United States Court of Appeals for the Second Circuit in discussing the impact sex crimes have on society stated as follows: “The seriousness of the harm that sex offenders’ actions cause to society and the perception, supported by some data, that such offenders have a greater probability of recidivism than other offenders have recently combined to prompt the enactment of numerous laws across the country directed specifically toward persons convicted of crimes involving sexual conduct.
In view of the foregoing, this court concludes that the registration and classification of such offenders are reasonable and necessary and, under the circumstances, sufficient procedural protection was provided to meet the minimum requirements of due process unless possession of a weapon was involved.
Finally, the Court noted that in the majority of cases, the certification, designation and notification provisions of SORA cannot be challenged on direct appeal from the judgment of conviction of the underlying sexual offense. However, the constitutionality of the process can be raised on a direct appeal from a judgment of conviction of the independent crime of failing to register.
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