Registered Sex Offender Where No Sex Offense Was Committed

People v Howard

New York Court of Appeals

2016 NY Slip Op 03415

Decided May 3, 2016

Issue: Whether the SORA hearing court abused its discretion in adjudicating defendant a risk level three where the unlawful imprisonment conviction, the qualifying crime for SORA, did not involve a sexual component.

Holding: The Court of Appeals held that the SORA court did not abuse its discretion in declining a downward departure from the presumptive risk level three for infliction of serious physical injury. The Court declined to depart from that presumptive level, highlighting the extensive serious injury inflicted upon the victim, which included torture inflicted and finding that defendant posed a serious risk to public safety that was not captured by the scoring instrument. The Board noted that under the Guidelines, an override to level three was applicable .

As a nonparent convicted of unlawful imprisonment of a victim less than 17 years of age, defendant was required to register as a sex offender pursuant to SORA, Correction Law 168 et seq.

Facts: Defendant, along with his codefendant, tied codefendant’s eight-year-old son up, naked, in a standing position and repeatedly beat him with dangerous instruments for a period of approximately five days. The child, bruised and battered, was discovered by police in an upper bedroom naked with his arms tied to the closet and bedpost, a sock stuck into his mouth, a pillowcase tied over his head, and socks tied on his wrists and his feet with electrical cord. The child suffered a collapsed lung, bruised intestines, a lacerated liver and pooled blood in the abdomen. Defendant was convicted of first-degree unlawful imprisonment, Penal Law 135.10, two counts of first-degree assault, 120.10 [1], and one count each of second-degree assault, 120.05 [8] and endangering the welfare of a child, 260.10 [1].

As a nonparent convicted of unlawful imprisonment of a victim less than 17 years of age, defendant was required to register as a sex offender pursuant to SORA, Correction Law 168 et seq. In preparation for defendant’s release, the Board of Examiners of Sex Offenders (the Board) prepared a Risk Assessment Instrument (RAI) that assessed defendant a risk factor score of 55 points, warranting a level one classification [FN1]. The Board had assessed 0 points for risk factor 2, “Sexual Contact with Victim.” The Board noted, however, that under the Guidelines, an override to level three was applicable because defendant inflicted serious physical injury to his victim. The Board further noted that no departure from that presumptive risk level was warranted

At defendant’s SORA hearing, defense counsel argued that a level one classification was appropriate, stating that the defendant scored at a Level 55. It does not appear that any of the accusations of which defendant was accused were of a sexual nature and, therefore, we would not dispute the score of 55 and ask that there be no departure.

The People, on reviewing the RAI, requested that for risk factor 1, “Use of Violence” in the current offense, the court assess defendant 30 points, as opposed to the 15 points assessed for inflicted physical injury, because defendant was armed with a dangerous instrument. This additional 15 points brought the total risk factor score to 70 points, still a presumptive risk level one. The People also agreed with the Board’s application of the presumptive override to risk level three on the basis that the offender inflicted serious physical injury. Defense counsel responded defendant’s crime does not appear to have any of those connotations and allegations that a Level 1 is appropriate.

County Court adjudicated defendant a level three sex offender, finding defendant’s total risk factor score was 70, constituting a risk level one but employing the override to a presumptive risk level three for infliction of serious physical injury. The court agreed with the Board’s recommendation and the People’s on the presumptive level three. The court declined to depart from that presumptive level, highlighting the extensive serious injury inflicted upon the victim which included “torture inflicted” and finding that defendant posed a serious risk to public safety that was not captured by the scoring instrument. The Appellate Division unanimously affirmed for the reasons stated by County Court and this Court granted leave to appeal.

Legal Analysis: The Court of Appeals held that at a SORA hearing, the People must prove the facts to support a SORA risk-level classification by clear and convincing evidence (Correction Law 168-n[3]. Here, defendant ultimately scored a total of 70 points on the RAI, warranting classification as a level one sex offender, and that score in not an issue in this appeal. However, the RAI also provides for four automatic overrides, the application of which will result in a presumptive risk assessment of level three, see Guidelines at 3-4. Relevant to this appeal, one of these overrides is for the “infliction of serious physical injury or the causing of death” (id. at 3). There is no dispute that defendant was convicted of the crime of first-degree assault, wherein he caused serious physical injury to the victim by the use of a dangerous instrument, Penal Law 120.10 [1], and, therefore, the override was properly applied.

The Court of Appeals held that the hearing court has the discretion to depart from a presumptive level, see Knox, 12 NY3d at 70. The Court has held that such departures are the exception, not the rule, People v Johnson, 11 NY3d 416, 421 [2008]). In determining whether to depart from a presumptive risk level, the hearing court weighs the aggravating or mitigating factors alleged by the departure-requesting party to assess whether, under the totality of the circumstances, a departure is warranted, People v Gilloti, 23 NY3d 841,861 [2014]).

In People v Cintron, decided in tandem with, Knox, the Court addressed the question of whether the courts below abused their discretion in not departing from the guideline level three since the crimes that gave rise to the adjudication did not involve sex , 12 NY3d at 70. The Court of Appeals answered that question in the negative, citing defendant Cintron’s long record of violent conduct, including sexual violence (id.).

In the present appeal, defendant’s argument that the SORA court erred in adjudicating him a level three sex offender is essentially twofold. Defendant argues (1) that SORA is unconstitutional as applied to him and (2) that the SORA court abused its discretion in engaging in an upward departure from a risk level one to three because defendant’s crime did not involve a sexual component. Defendant’s constitutional argument is unpreserved for this Court’s review, People v Windham, 10 NY3d 801, 802 [2008].

Defendant’s sole argument to the SORA court was that the absence of a sexual component to his crime, in and of itself, warranted a level one adjudication. That factor, the existence of which was not in dispute, was considered in defendant’s RAI wherein the Board assessed him 0 points for risk factor 2, Sexual Contact with Victim. Defendant made no other argument of a mitigating factor to the SORA court in support of a downward departure. In the exercise of its discretion, the SORA court declined to depart from the presumptive risk level three.

Under these circumstances, it was not an abuse of discretion for the SORA court to decline to depart from the presumptive risk level three.

Accordingly, the order of the Appellate Division should be affirmed.