Effective 21 January 1996, the New York Sex Offender Registration Act (SORA), section 3 of Chapter 192 of the Laws of 1995, Correction Law Art. 6-C, sections 168-et seq., modeled after New Jersey’s Megan’s Law, requires that convicted criminal sex offenders register with the appropriate law enforcement agencies. On the basis of an assessment of risk, information pertaining to this offender may be disseminated by the appropriate law enforcement agencies to the public. Under SORA, there must be a determination of: whether a defendant is indeed “a sex offender or a sexually violent predator”; and, “the level of notification”.” These determinations are to be strongly based on the recommendations made by the Board of Examiners of Sex Offenders (the Board). The Board has promulgated a Risk Assessment Instrument (RAI), which is to be utilized by the courts, “to assess the risk of a repeat offense by such sex offender and the threat posed to the public safety.”
Under the RAI, a numerical value to various factors is assigned, resulting in a “total risk factor score.” Based on this score, the offender is further categorized into one of three levels of notification. Where the risk of repeat offense is low, a level one designation (0 to +70) is assigned, and this requires that the appropriate law enforcement agencies are notified pursuant to SORA. Where the risk of repeat offense is moderate, a level two designation (+75 to +105) is assigned, and the appropriate law enforcement agencies “may disseminate relevant information which may include approximate address based on sex crimes offender’s zip code, a photograph of the offender, background information including the offender’s crime of conviction, modus of operation, type of victim targeted and the description of special conditions imposed on the offender to any entity with vulnerable populations” and “any entity receiving information on a sex offender may disclose or further disseminate such information at their discretion.” Where the risk of repeat offense is high, a level three designation (+110 to +300) is assigned, and the sex offender is deemed a “sexually violent predator.” In addition to all the requirements of a level two assignment, a level three sex offender’s exact address may be disseminated, and all of the pertinent information regarding the offender will be made available to the public through a subdirectory.
The RAI is not the sole criterion in determining: whether a defendant is a sex offender or a sexually violent predator”; and “the level of notification.” The sentencing court must also base its determinations on the victim’s statement and any materials submitted by the sex offender. Moreover, the sex offender must be allowed to appear and be heard. As clearly stated in the Risk Assessment Guidelines and Commentary of SORA, the risk factor calculated under the RAI is merely presumptive. If ‘special circumstances’ warrant a departure, the Court may depart from it. This ability to depart is based on the recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Thus, a court is permitted to bring its sound judgment and expertise to bear on an otherwise coldly objective exercise which seeks to quantify that which may prove to be highly subjective. However, in People v. Ross, 1996, the court held that, “because the hearing was an ‘administrative function,’ it should ‘review the Board’s recommendations only for arbitrariness and capriciousness and otherwise uphold them.”