The respondent, before the court for a risk level determination pursuant to the Sex Offender Registration Act (SORA), moves for an order rejecting the recommendation of the Board of Examiners of Sex Offenders (the Board) that the respondent be designated a risk level three. The respondent further seeks an order holding that he is not required to register as a sex offender.
A New York Sex crimes attorney said that in November 1988, the respondent was arrested in Kings County and subsequently indicted for robbery in the first degree and related offenses. Thereafter, he entered a plea of guilty to attempted robbery in the first degree.
Subsequent to the issuance of the Kings County warrant, the respondent was arrested in North Carolina and charged with having sexual contact with four children. Later, following a three-day trial, he was convicted of one count of first degree sex offense and related charges and was sentenced to life in prison.
Following a second trial, he was convicted of two counts of first degree sex offense and related charges and was sentenced to two additional terms of life in prison plus 60 years. Both convictions were based solely on testimonial evidence from the children, with no physical or medical evidence being introduced at trial.
The primary witnesses at both trials were the “victims”. Each of them testified to nonconsensual penis/anal contact with the respondent. The conviction for the allegation was based solely on the testimony of the victim. All of the complaining witnesses were under 12 years of age at the time of the alleged sexual contacts.
Fourteen additional witnesses testified at the trials to witnessing “rape” or other sexual abuse, all of which witnesses were children of various ages.
The respondent maintained his innocence throughout his years in prison and 12 years later, in 2003, the North Carolina Center for Actual Innocence attempted to locate and interview the children—now adults—who testified at his trial.
In January 1996, SORA became effective. SORA established a notification and registration scheme for individuals convicted of certain enumerated sex offenses. Under that scheme, a convicted sex offender is classified into one of three levels based upon the risk that the offender will commit a repeat offense. If the risk of repeat offense is low, the sex offender is designated as a level one offender. For these individuals, SORA requires notification to law enforcement agencies located in the offender’s jurisdiction, and annual registration by the offender for a period of 10 years. Level two classification, which is given to offenders who present a moderate risk of reoffense, also requires law enforcement notification and annual registration for 10 years. In addition, SORA allows law enforcement agencies to notify any entity with “vulnerable populations” that a convicted level two sex offender resides in the community. Those entities, in turn, may further disseminate that information at their discretion. The highest designation, level three, is given to sex offenders whose risk of a repeat offense is high. Level three offenders must register in person every 90 days for a minimum of 10 years, and potentially for life.
In addition to all of the notification provisions applicable to risk level two offenders, risk level three offenders are included in a directory of sex criminal offenders which is made available to the public.
Finally, for all three classification levels, SORA requires that information about the offender be available to any member of the public who calls a designated “900” telephone number.
Pursuant to SORA, the Board has developed guidelines to assess the risk of a repeat offense by a sex offender and the threat that person posed to the public safety.
The Board consists of five members who are employees of the executive branch of government appointed by the Governor. It is one of the responsibilities of the Board, applying factors which the Board has adopted, to “make a recommendation to the sentencing court as to whether such sex offender warrants the designation of predicate sex crimes offender. In addition, the guidelines shall be applied by the board to make a recommendation to the sentencing court providing for one of the three levels of notification”.
With regard to designating an offender a “predicate sex offender,” the statutory language clearly places the Board in the position of recommending such designation and the court determining whether the recommendation warrants the designation. If the court determines that an offender is not a “predicate sex offender,” the Board’s recommendation may be ignored. With respect to determination of risk level, the People contend that the court must apply the risk level guidelines to determine the level of notification, with the People arguing that the Board’s recommendation of risk level three is appropriate.
Inherent in this contention is that the court, in determining risk level, must operate within one of the three risk levels set forth in the statute. This would fly in the face of the clear statutory language of Correction Law § 168-l (6) and, additionally, usurp the role of a court in reviewing any administrative agency action.
It is certainly within the power of the Legislature to preclude judicial review of agency action and the Legislature has, on rare cases, taken such action. In the absence of a clear legislative intent, however, such preclusion will not be found.
The role of the Board is, therefore, to recommend. It is within the power of the court to make a determination based on that recommendation.
If either the People or the sex offender disagrees with the Board’s recommendation in the sentencing court, the parties shall be afforded a hearing. In such a hearing, “[t]he sentencing court has wide discretion with regard to the conduct of the hearing and the type and nature of the testimony and evidence to be considered. Formal rules of evidence are inapplicable to this type of proceeding and reliable hearsay evidence may be utilized to support the court’s final determination.”
At the criminal hearing, the People bear the burden of proving the facts supporting the determination sought by clear and convincing evidence and “in making the determinations the court shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations. Facts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated.”
Since the 1991 convictions in this case were vacated with the consent of the North Carolina prosecutor and no facts were adduced at the entry of the plea in 2004, there is a need for the People to shoulder the burden of establishing the facts to support the Board’s recommendation by clear and convincing evidence. The facts cannot be deemed as established.
A person is a predicate sex offender if he or she has been convicted of an offense set forth in Correction Law § 168-a (2) or (3)3 and has been previously convicted at any time of any such offenses. The predicate offense in this case is the 1977 conviction of crime against nature.
In order for an out-of-state conviction to qualify as a “predicate offense,” it must include all of the essential elements of a comparable New York sex offense or a felony in the other jurisdiction for which the offender is required to register in such jurisdiction.
A review of the North Carolina Rape Offender Registration Act discloses that there is no requirement to register for convictions of crime against nature
As previously noted, crime against nature provided as follows: “If any person shall commit the crime against nature, with mankind or beast, he shall be guilty of a felony, and shall be fined or imprisoned in the discretion of the court.”
This statute has been, over the years, applied to cover conduct constituting anal and oral sexual conduct and sexual conduct with animals. Since the underlying facts of this prior conviction relate to the insertion of a foreign object into the rectum of an animal, the closest analogy to a New York sex crime listed in Correction Law § 168-a (2) is sexual misconduct, which, in pertinent part, provides that a “person is guilty of sexual misconduct when: he or she engages in sexual conduct with an animal.” “`Sexual conduct’ means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact”; “aggravated sexual contact” relates to sexual contacts with children and “`sexual contact’ means any touching of the sexual or other intimate parts of a person not married to the actor”.
Accordingly, the North Carolina conviction in 1977 for crime against nature as it relates to this respondent does not qualify as a “predicate offense” since it does not include all of the essential elements of a comparable New York sex offense.
The court determines that the respondent is not a predicate sex offender.
Accordingly, it is ordered that the respondent not be required to register as a sex offender.
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