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Post-Offense Behavior


Bronx Sex Crimes Lawyer said that, following a jury trial in which he was found guilty of six counts of sodomy in the first degree , one count of attempted sodomy in the first degree , two counts of sodomy in the second degree , and one count of sex abuse in the first degree , pursuant to the Sexual Offender Registration Act (hereinafter SORA), the Board of Examiners of Sex Offenders recommends designating defendant as a risk level three sexually violent offender upon his release from custody. Although conceding that his total risk factor score is correct, defendant argues at a risk assessment hearing that the totality of the circumstances warrants a departure to a risk level two.

A Bronx Sex Crime Lawyer said that, on October 23, 2003, the Board submitted a risk assessment instrument. It recommends designating defendant as a sexually violent offender based on his convictions for sodomy in the first degree, attempted robbery in the first degree, and sex abuse in the first degree. It also recommends classifying defendant as a risk level three based on an assessed score of 165. Specifically, the Board assessed: 10 points for use of forcible compulsion; 25 points for sexual intercourse, deviate sexual intercourse or aggravated sexual abuse with the victim; 30 points for three or more victims; 20 points for engaging in a continuing course of sexual misconduct; 20 points for the age of the victims being between 11 and 16; 10 points for defendant being 20 years of age or less at the time of his first act of sexual misconduct; 30 points for a criminal history consisting of a prior violent felony, misdemeanor sex crime or endangering the welfare of a child; 10 points for the prior felony or sex crime occurring less than three years before the current incidents; and 10 points for unsatisfactory conduct while confined or supervised.

The Board then compiled a case summary “based upon a review of the inmate’s file which includes but is not limited to the pre-sentence investigation, prior criminal history and post-offense behavior”. This summary stated, in pertinent part, that: “In 1986, defendant was adjudicated a Youthful Offender for Criminal Possession of a Loaded Firearm, a sawed off rifle, and Theft of Services. As a result, he was placed on five years probation. While on probation for that offense, he was arrested for the instant sex offense for which he was convicted after trial. Regarding the sex offenses, [defendant], who was nineteen years old at the time, sodomized and sexually abused five young, runaway, boys who were between the ages of eleven and fifteen.

A Bronx Criminal Lawyer said that, defendant argues that despite the fact that he could not overcome his risk assessment score that places him as a level three offender, he is nevertheless not a threat to the community nor a sexual predator. In support of this contention, defendant notes that since being incarcerated in this matter, he has been married, is currently engaged for a second time, has overcome a heroin addiction, and is now much older than at the time he committed these acts. In response, the People contend that the above-mentioned facts do not warrant any departure from designating defendant a level three offender.

The issue in this case is whether the board erred in designating defendant as a risk level three sexually violent offender upon his release from custody.

Pursuant to SORA, the Board developed guidelines and procedures to assess the risk of a repeat offense by a sex offender and the threat that person posed to the public safety. Based on these factors, the Board recommends to the sentencing court whether a defendant warrants the designation as a sexual predator, sexually violent offender, or predicate sex offender as defined in Correction Law § 168-a (7), as well as which of three levels of notification the defendant should be assigned based upon “the risk of a repeat offense.”

The two risk assessment levels that are pertinent to the case at bar are a level two designation if the risk of repeat offense is moderate and a level three designation if the risk of repeat offense is high. The notification for these two levels differs in that a level three offender’s exact address and address of his place of employment may be disseminated, whereas a level two offender may only have his approximate address based on his zip code disseminated.

In determining the risk level, the Board has promulgated 15 factors that are divided into four categories. These factors are based on an individualized approach that is mandated by federal statute, and they are designed to “eschew per se rules that risk should be assessed on the basis of a review of all pertinent factors”. Under each factor the “court should look to the most serious wrongdoing in each category”, and only one of the options is chosen if any are applicable. If the aggregate score from all of these factors is at least 75 points but no greater than 105, the offender is presumptively a risk level two. If it is 110 or greater, he is presumptively a risk level three.

The relevant factors within each category are now reviewed: 1. Current Offense(s). To “be completed on the basis of all of the crimes that were part of the instant disposition”. If the offender used forcible compulsion, as defined in Penal Law § 130.00 (8), 10 points are assigned. “Research on sex offenders shows that the offender’s use of violence is positively correlated with his likelihood of reoffending and is also a factor strongly associated with the offender’s dangerousness to the community”. Respecting sexual contact with the victim, if the offender engaged in sexual intercourse or deviate sexual intercourse, or aggravated sex crimes abuse, 25 points are assigned. If three or more victims were abused or sodomized, 30 points are assigned. “The existence of multiple victims is indicative of compulsive behavior, and is therefore a significant factor in assessing the offender’s risk of re-offense and dangerousness”. If the offender engages in a continuing course of sexual contact with the same victim, 20 points are assigned.

However, the definition of a continuing course of sexual contact under the Guidelines is different than that under the Penal Law. As explained in the Guidelines: “For purposes of these guidelines an offender has engaged in a continuing course of sexual contact when he engages in either (i) two or more acts of sexual contact, at least one of which is an act of sexual intercourse, deviate sexual intercourse, or aggravated sexual abuse, which acts are separated in time by at least 24 hours, or (ii) three or more acts of sexual contact over a period of at least two weeks.”

“Since the issuance of the original guidelines in January 1996, the legislature has enacted a continuing course of sexual misconduct crime, which reaches conduct occurring over a period of more than three months.” The legislative history of the new law makes clear that the three-month period was selected for reasons related to the law of pleadings and particulars i.e., because court decisions had made it difficult to prosecute sex crimes occurring over a period in excess of three months when the child victim could not specify the precise dates on which the crimes occurred. The history does not suggest that the Legislature believed that repeated crimes occurring over a shorter period — e.g., two weeks — were not a sound basis for finding an offender to be compulsive in his misconduct. Hence, the Board has determined not to modify this guideline. If the age of the victim(s) is between 11 and 16, 20 points are assigned because “offenders who target young children as their victims are more likely to reoffend and such offenders pose a heightened risk to public safety since young children lack the physical strength to resist and can be more easily lured into dangerous situations than adults”.

2. Criminal History. If the offender was 20 years of age or less at the time of his first act of sexual misconduct, 10 points are assigned because “those who offend at a young age are more prone to reoffend”. In this section, “the term `crime’ includes criminal convictions, youthful offender adjudications and juvenile delinquency findings as these determinations are reliable indicators of wrongdoing and therefore should be considered in assessing an offender’s likelihood of re-offense and danger to public safety.” “Although an adjudication as a youthful offender is not a conviction, it constitutes a reliable determination that an offender committed the underlying criminal conduct. If the offender has a prior criminal history consisting of a prior violent felony, misdemeanor sex crime or endangering the welfare of a child, 30 points are assigned. In addition, 10 points are assigned if the prior felony or sex crime occurred less than three years prior to the instant offense.

3. Post-Offense Behavior. This involves “an assessment of the defendant’s conduct while in custody”. If the offender’s adjustment to confinement or supervision has been unsatisfactory, 10 points are assigned. Not surprisingly, “an offender who has incurred serious disciplinary violations in prison poses a heightened risk of recidivism and his misconduct bodes ill for his return to the streets”.

4. Release Environment. No points were assigned under this factor, making for a total risk score of 165 presumptive points.

Notwithstanding, this presumed determination by the Board is merely a recommendation. The sentencing court is charged with making the actual determination regarding whether a defendant is a sexual predator, sexually violent offender or predicate sex offender, and if he is to be designated as a risk level one, two or three.

Under SORA, a sexually violent offender is any sex offender convicted of a sexually violent offense, which includes a conviction for sodomy in the first degree, attempted sodomy in the first degree or sexual abuse in the first degree. Therefore, defendant, who has been convicted of all of the above-mentioned crimes, has properly been categorized as a sexually violent offender. Drug possession was not involved.

Likewise, defendant was properly classified as a risk level three sex offender. This classification was supported by clear and convincing evidence, based on the facts contained in the Board’s case summary and risk assessment instrument, defendant’s rap sheet, the Appellate Division’s decision in this case, and defendant’s own statements. Although no court has ruled on whether an appellate division decision can be utilized in making such a determination, in light of the fact that presentence reports, rap sheets, probation, parole and correction department reports, case summaries of the Board, statements by victims and defendants, and courts’ own recollections have all been held to be reliable, the court cannot fathom the notion that an appellate court’s decision would not be entitled to at least equal if not more weight. In any event, all of the sources in this case establish by clear and convincing evidence that defendant used forcible compulsion (10 points), had deviate sexual intercourse with the victims (25 points), five victims were involved (30 points), there were at least three acts of sexual contact, including deviate sexual intercourse, over at least a two-week period (20 points), and that the victims were between 11 and 16 years old (20 points).

Accordingly, the court held that, defendant is hereby adjudicated a risk level three sexually violent offender.

If you want to question the SORA Board’s assessment in your case, seek the assistance of a Bronx Criminal Attorney and Bronx Sex Crime Attorney at Stephen Bilkis and Associates.

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