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The court finds that the 15 points assessed for this risk factor is appropriate.


A Queens Sex Crimes Lawyer said that, the defendant was charged by a felony complaint with Rape in the Second Degree (Penal Law § 130.30) and Endangering the Welfare of a Child (PL § 260.10(1)). Pursuant to a plea bargain, the defendant pleaded guilty to one count of Attempted Rape in the Third Degree (PL § 110/130.25) and was sentenced to six months in jail. As required by the Sex Offender Registration Act (Art. 6-C of the Correction Law), the Board of Sex Examiners submitted a Risk Assessment Instrument finding that the defendant was at level 2 or at a moderate risk of reoffending. The defendant challenges that finding.

A Queens Criminal Lawyer said that, in the felony complaint, a detective who signed the document alleged that he was informed by the 12-year-old complainant, inter alia, that the 39-year-old defendant had sexual intercourse with her between April 1st and April 15th, 1997, laying on top of her in her bed and holding her down with his body. Additionally, he told her that if she told anyone what he had done, he would kill her. The complaint also alleged that on several occasions ending in mid-April, 1997, he sexually abused the complainant by repeatedly placing his finger in her vagina and on her breasts.

A Queens Sex Crime Lawyer said that, on August 12, 1997, the defendant pleaded guilty to the reduced charge of Attempted Rape in the Third Degree (PL § 110/130.25), an A misdemeanor, and allocated to one incident of sexual intercourse with the complainant. There was no provision in the plea agreement that the defendant submit to any treatment or therapy. Prior to sentence, he was interviewed by a representative of the Department of Probation, during which interview he admitted to having “sex with his 12 year old niece. He stated that he feels terrible about what he has done. He further stated that it should never have happened.”
A Queens Criminal Lawyer said that, in the Evaluative Summary of the Probation Report, the Probation Officer assigned concluded: “He superficially verbalized remorse for his behavior. It appears that the defendant was self absorbed in fulfilling his own needs. He had no regard for the devastating effect that his behavior would have on the victim.” The report does not set forth the basis for these conclusions which are inconsistent with the statements of the defendant. Efforts of the Probation Department to interview the complainant proved to be unsuccessful. The Assistant District Attorney assigned to the case was contacted, however, and advised that the complainant was in foster care and her adjustment is “fair.” On October 30, 1997, as required by the Sex Offender Registration Act (Art. 6-C of the Correction Law), the Board of Sex Examiners submitted a Risk Assessment Instrument which found that the defendant was a level 2 or moderate risk of reoffending.

The issue in this case is whether the Board of sex Examiners correctly assessed the defendant to a level 2 or moderate risk of reoffending.

The court in deciding the case said that, the Sex Offender Registration Act requires the Board of Examiners of Sex Offenders to “develop guidelines and procedures to assess the risk of a repeat offense by a sex offender and the threat posed to public safety.”. There are three levels of risk depending upon the offender’s danger to the community: level 1 (low risk), level 2 (moderate risk), and level 3 (high risk). The offender’s risk level determines the amount of information that can be disseminated about him to the public under the Drug Act’s notification procedures.

Sex Offender Registration Act, Risk Assessment Guidelines and Commentary, November 1997, p. 1. All sex offenders are required to register upon conviction of the sex offenses set forth in Corr.L. § 168-a(2) and (3). It is the responsibility of the court to determine the duration of registration and level of notification after considering certain guidelines set forth in the statute and which are to be followed by the Board of Examiners. With regard to the duration of registration, every sex offender must register annually for ten years. If a court determines that the offender is a predatory sex offender, the ten-year period is a minimum and the offender must verify registration quarterly. There is no evidence nor is it contended that the offender in this case is a predatory sex offender. Accordingly, the duration of the registration in this case is the mandatory ten-year time period which attaches automatically upon conviction.

With regard to the level of notification, a level 1 designation (a risk of a repeat offense is low) attaches upon conviction even though the court is still required to review the recommendation of the Board of Examiners and make a decision. A level 1 designation means that appropriate law enforcement agencies are notified as to the address and particulars of the defendant.
A level 2 designation (a risk of repeat offense is moderate) is determined by the court after reviewing the recommendations of the Board, any victim’s statement and any materials submitted by the offender and after the offender has had an opportunity to appear and to be heard. When an offender is designated level 2, the appropriate law enforcement agencies may disclose relevant information regarding the offender (except his address shall be by zip code rather than actual residence) including a recent photograph to any entity having a vulnerable population related to the offense committed, which entity may, in turn, disclose such information if they so choose.

A level 3 designation relates to a sexually violent predator and is not applicable in this case. The recommendation by the Board is set forth in a Risk Assessment Instrument. This document is a checklist form in 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. It was created pursuant to the Board’s statutory mandate to create an objective assessment instrument that would provide a presumptive risk level for a sex offender. For example, if after an objective determination, an offender scores 75, it is presumed that there is a moderate risk of repetitive behavior. The point spreads for the various risk levels are: 0-70, low risk; 75-105, moderate risk; 110 to 300, high risk.

In the defendant’s case the total point assessment determined by the Board of Examiners was 100. The points were assessed as follows: With respect to the current offense, the use of forcible compulsion mandates a score of 10, the fact of sexual intercourse a score of 25, a continuing course of sexual conduct a score of 20 and the age of the victim a score of 20, for a total of 75 points.

The defendant received no points for the category Criminal History. For Post-Offense Behavior, he received 10 points for not accepting responsibility for his actions. Finally, for Release Environment, he received 15 points for being released without supervision. Attached to the Risk Assessment Instrument is a Case Summary which states that according to reports the offender laid on top of the victim and held her down with his body weight and then raped her. On other occasions he put his fingers into her vagina and touched her breasts. He threatened that if she told anyone what he had done he would kill her.” This is the same language that appears in the felony complaint. The Case Summary also states the conclusions set forth in the Probation Report that the defendant only superficially verbalized remorse.

The defendant submitted the complainant’s diary which indicated sexual activity with other individuals prior to her incident with the defendant. He contends that the risk assessment is improper in three respects: a) The assessment of 20 points for a continuing course of conduct is improper because he only pleaded guilty to one incident and her allegations in the felony complaint are incredible; b) The assessment of 10 points for not accepting responsibility for his actions is based, not on fact, but unsupported conclusions by the Probation Officer and adopted by the Board without any investigation; c) The assessment of 15 points for being released without supervision, since the original plea bargain offered by the People contained no provision for future treatment or supervision.

The Court of Appeals has recently held that Megan’s law determinations are not criminal in nature but similar to any other regulatory disability which is triggered upon conviction (such as the loss of the right to vote upon a felony conviction) and therefore there is no appeal from an adverse determination pursuant to the provisions of the Criminal Procedure Law. Accordingly, it would appear that a Megan’s Law determination and any hearing held in connection with such a determination is “civil” in nature.

In this case, the court finds that the felony complaint together with the supporting deposition of the complainant sufficiently establish the facts alleged. With regard to the sexual intercourse allegation, the testimony of the complainant would merely repeat the facts to which the defendant allocated when he pled guilty and is therefore cumulative. Cross-examination as to those facts would be disingenuous to say the least in light of the defendant’s admission to the sex crime in court and to an interviewing probation officer. Additionally, requiring a complainant of this young age who is presently undergoing some form of therapy to testify to the event would be unduly burdensome. In light of the complainant’s psychological state, there is sufficient cause for the People to use the complainant’s supporting deposition attesting to the truth of the facts alleged to establish the fact that there were multiple acts of sexual misconduct. The defendant was entitled to be heard and presented no evidence to contradict or raise into question the allegation in the felony complaint as to the multiple counts of sexual abuse. The fact that he did not plead guilty to committing such act does not mean that they did not occur. Accordingly, the court finds that the assessment of 20 points for a “course of conduct” is appropriate.

The defendant’s contention that the 10 points assessed for “failing to accept responsibility for his actions” is based on unsupported conclusions is correct. In light of the probation report’s contradictions, the defendant should have had the right of confrontation. This was particularly necessary since it appears that the Board of Examiners specifically relied upon the probation report in making their assessment. Since the People failed to show any factual basis for the conclusions set forth in the probation report, the court will not consider the 10 points assessed by the Board of Examiners.

Finally, the defense asserts that the assessment of 15 points for being released without supervision is improper since the original plea bargain offered by the People contained no provision for future treatment or supervision. This contention fails to focus on the issue before the court. The issue is not whether the plea bargain required the defendant to be treated or supervised but rather the degree of risk of this defendant repeating the conduct for which he plead guilty. Persons who are treated and supervised have less risk of repetitive conduct than persons who are not treated. This is independent of whether the People required or did not require treatment as part of the plea bargain. Accordingly, the court finds that the 15 points assessed for this risk factor is appropriate.

Accordingly, the court held that, taking into consideration that the defendant’s rating is now 90 points as well as all of the facts and circumstances of this case, the Court finds that the level of notification for this defendant is level 2.

If the risk assessment of the Board of Sex Offender is unreasonable, seek the representation of a Queens Sex Crime Attorney and Queens Criminal Attorney in order to correct your risk level assessment. Call us at Stephen Bilkis and Associates.

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