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Correction Law §§ 168-l and 168-n


This is a proceeding wherein the defendant, a convicted sex crimes offender, appeals from an amended order determining that he is a “level three” risk under the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.

As a matter of first impression at the appellate level, the court must determine whether County Court, on the People’s request for reconsideration of a prior order determining defendant to be a “level two risk,” had statutory or inherent authority to depart from its prior order and make a new determination.

The court concludes that the appellate court was authorized to reconsider or correct its determination of risk level under SORA based on further argument by the People and/or additional information provided by them.

In 22 May 1998, the 37-year-old defendant was convicted of rape in the third degree under Penal Law § 130.25 for having sexual intercourse with a 15-year-old girl. He was sentenced to an indeterminate term of incarceration of 1½ to 3 years. On 4 April 2000, in anticipation of his discharge from incarceration, defendant was remanded to County Court for determination of his risk level pursuant to Correction Law §§ 168-l and 168-n.

Under SORA, an offender’s risk level determines the duration and intensity of registration – monitoring of the offender and notification – dissemination of information about the offender under Correction Law §§ 168-f, 168-h, 168-l [6]). Risk level is determined based on various factors, including criminal history factors indicative of high risk of repeat offense and other criminal history factors to be considered in determining risk, including the number, date and nature of prior offenses in accordance with Correction Law § 168-l [5] [a], [b] [iii]. Pursuant to that scheme, County Court conducted a hearing at which it heard argument and considered the following materials:

(1) A “risk assessment instrument” containing the recommendation of the Board of Examiners of Sex Offenders and scoring defendant based on 15 “risk factors” related to his 1998 conviction and criminal history. That instrument awarded defendant a score of 105, at the high end of the level two or “moderate” risk classification. That score included 15 points under risk factor 9, relating to the number and nature of defendant’s prior crimes, in particular, defendant’s prior history/non-violent felony. The instrument indicates that defendant would have received 30 points rather than 15 if his criminal history were known to have included a prior violent felony or misdemeanor sex crime or endangering welfare of a child.”

(2) An attached case summary indicating that defendant had a prior felony conviction for burglary in South Carolina, but stating that it is unknown if the out of state conviction would constitute a violent felony offense.”

(3)” A presentence investigation (PSI) report indicating that defendant had been convicted in South Carolina in 1989 of burglary in the first degree, a felony, but otherwise revealing nothing about the nature of that offense or its underlying facts.”

The People argued during the hearing that criminal defendant should be classified as a level three risk because the risk assessment form had overlooked certain factors. Under risk factor 9, defendant should receive an additional 15 points for a total of 30 rather than 15 for the number and nature of his prior sex crimes, to take into account his prior commission of a violent felony. Based on the record before the court and the provisions of the South Carolina statute, the People argued that defendant’s South Carolina conviction was for the burglary of a dwelling, the New York equivalent of which is a violent felony. In opposition, defendant argued that the record did not indicate whether there was any actual violence in the defendant’s felony history as opposed to violent felony status attached to residential burglary in the State of New York. The People, in rebuttal, reiterated that the South Carolina burglary was of a dwelling, that a residential burglary is classified as a violent felony in New York, and that the Risk Assessment Guidelines and Commentary indicate that the term violent felony, as used in the guideline, has the same meaning as in Penal Law § 70.02 (1). The People again asked that defendant be classified as a level three risk.

The court classified defendant as a level two risk although the court notes that the People had made a good argument for why the presumptive determination should be modified upward. An order to that effect was signed that day and entered two days later.

The People received documents from South Carolina, including a supporting affidavit and arrest warrant, an indictment, and a sentencing commitment order. The documents show that defendant initially was charged with first degree burglary in violation of South Carolina Code Annotated § 16-11-311, was later indicted for burglary in the second degree in violation of South Carolina Code Annotated § 16-11-312, subsequently pleaded guilty to that indictment, was sentenced to 15 years in prison, and apparently served 30 months of that term. The documents further show that South Carolina’s offense of burglary in the second degree, like New York’s, consists of unlawfully entering a dwelling with intent to commit a sex crime therein. The supporting affidavit by the burglary victim describes the offense as follows:

“Defendant did enter into the residence of the victim with intent to commit a crime, in that he did enter into the bedroom of a 12-yr old female and did feel her body and did make an effort to get this 12-yr old girl to have sex with him.

“Entrance into this residence was at 4:30 AM in the night time.”

Before any appeal had been taken from the April 4 order, the People apprised the court of the new information contending that the defendant should have received 30 points under factor number 9 for a prior violent felony.

The defendant was again remanded to County Court for what the court characterized as “a re-evaluation of the sexual offender level based upon the papers that were received after the original level was set under the circumstances and pursuant to the limitations of Correction Law § 168-o (3), defendant contends that the People lacked authority to seek, and the court lacked the power to grant, a modification of the court’s final determination. The People argued that Correction Law § 168-o (3) does not apply to this case and thus does not limit the authority of either the People or the court.

The People’s position is simply that the Criminal Court did not have sufficient information to make the determination when it was made and there is no prejudice to the defendant if the court were to reconsider its determination. However, the court emphasized that it did have authority to make the modification at that time. Thereafter, the court adjourned the matter to enable defendant to conduct further discovery pursuant to Correction Law § 168-n (3).

The defendant argued that the documents furnished to the court constituted insufficient proof to support a mandatory override based on a prior sexual felony conviction. In response, the People argued that defendant had committed a residential burglary, which as a matter of law constitutes a violent felony offense. Accepting the People’s argument, the court reconfigured the risk assessment document to assess “30 points under question No. 9, under criminal history. After considering whether defendant should be categorized as a level three risk or whether there should be a downward departure, the court concluded:

“I don’t intend to depart from the presumptive level which I now find to be a level 3 sex offender based upon all of the information we considered before together with the 1989 affidavit of the burglary victim in support of an application for a warrant detailing certain sexual conduct during the burglary by this defendant.”

The court regarded that as additional evidence that defendant’s prior felony conviction was violent, involving burglary of a dwelling and sexual misconduct. In accordance with its new finding, the court tabulated defendant’s score at 120 and found him to be a level three risk. An “Amended Order” was entered accordingly.

Defendant contends that the court had no authority to “modify” its prior risk level assessment and, in any event, the People did not establish the facts underlying defendant’s out-of-state conviction by clear and convincing evidence.

The court is faced with the issue of whether it had statutory or inherent authority to revisit its prior determination based on an asserted error of law or fact.

The court concludes that it does.

Pursuant to CPLR 2221, the court had statutory authority to grant reargument and renewal. It was ruled in People v Kearns, People v Hernandez, People v Cash, People v Sumpter, People v Salaam, Matter of Vandover v Czaika and Matter of New York Satae Bd. Examiners of Sex Crimes Offenders v Ransom that proceedings to review SORA risk level determinations made under these circumstances have been treated as civil, not criminal, in nature.

The Legislature recently explicitly incorporated CPLR articles 55, 56, and 57 into proceedings conducted pursuant to SORA, thereby granting either party a right to take a civil appeal from a risk level determination under Correction Law § 168-d [3]; § 168-k [2]; § 168-n [3]; § 168-o [1]-[3]. Those CPLR articles refer to the granting or denial of motions for reargument or renewal, the appealability or nonappealability of such orders as of right, the reviewability of such orders on appeal from other orders, and the effect of such motions and orders upon related appeals.

Even if SORA could not be read as incorporating procedures for seeking renewal or reargument with respect to a risk level determination, the court nevertheless concludes that a court may grant relief pursuant to CPLR 2221 in a SORA proceeding, which has been deemed by the courts and the Legislature to be essentially civil in form. Moreover, we would conclude that the court has inherent power to correct its own order to rectify a mistake of law or fact.

In considering the inherent power of the court to correct its own mistakes of law or fact, the court must consider the overriding purposes and objectives of SORA- the danger of recidivism posed by sex crimes offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior.

The Legislature expressly intended to conform New York law to Federal requirements provide law enforcement with additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation promptly and protect vulnerable populations and in some instances the public, from potential harm.

In the case at bar, the People adequately stated a basis for reargument and renewal of their request to classify defendant as a level three risk. Concerning reargument, the court notes that the original determination was legally and factually erroneous. The People’s application was properly based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion including matters of fact offered on the prior motion under CPLR 2221 [d] [2]. During the initial proceedings, the court was made aware that defendant’s criminal history included at least one “violent felony,” meaning that defendant should have received 30 rather than 15 points. The court should have credited the People’s assertions and assessed defendant with at least 120 points rather than just 105. In failing to do so, the court misapprehended or overlooked the determinative facts and controlling principles of law.

Alternatively, the People stated grounds for renewal. The information obtained by them and forwarded to the court after the initial determination conclusively showed that defendant had been convicted in South Carolina of the burglary of a dwelling. This showed that defendant’s prior out-of-state conviction was a violent felony offense with sexual overtones. The information in question thus consisted of new facts not offered on the prior motion that would change the prior determination and that the People had reasonable justification for failing to present on the prior motion under CPLR 2221 [e] [2], [3].

The court concludes that the People had valid grounds for seeking reargument and renewal pursuant to CPLR 2221, and that they in any event properly invoked the inherent authority of the court to correct its own error.

Pursuant to Correction Law § 168-n [3] and People v Bottisti, defendant points out that the People bore the burden of proving the facts supporting the duration of registration and level of notification sought by clear and convincing evidence.

The court notes that the materials submitted by the People at the second proceeding showed conclusively that defendant’s criminal history included at least one violent felony. Although given an opportunity to discover and present evidence on the matter defendant adduced nothing in opposition to those materials. As a matter of law, the crime of which defendant was convicted, burglary in the second degree under South Carolina Code Annotated § 16-11-312, constitutes a violent felony offense under Penal Law § 70.02 [1] [b]; § 140.25 [2]). Contrary to defendant’s contention, that is true irrespective of the court’s finding that the prior burglary involved sexual misconduct.

The court concludes that the signed and sworn supporting affidavit of the burglary victim constituted reliable hearsay and/or a relevant statement of any victim under Correction Law § 168-n [3], and that the court was entitled to consider and rely on such evidence as clear and convincing proof that defendant is a level three risk as ruled in People v Saleemi, People v Victor, People v Jimenez and People v Salaam.

Accordingly, the amended order should be affirmed.

New York Sex Crime Lawyers or New York Sexual Misconduct Lawyers at Stephen Bilkis & Associates extend their legal services diligently. If you have questions regarding the issues mentioned in the case above, please feel free to call our toll free number. A team of experts will be glad answer your questions.

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