The information below contains excerpts from an attorney’s guide to defending SORA cases and has been republished with the permission of the author.
The Sex Offender Registration Act (Correction Law Article 6-C), is known as SORA. The Act is New York’s version of Megan’s Law, which was first adopted in New Jersey in response to the case of Megan Kanka. SORA established a Sex Offender Registry within the New York State Division of Criminal Justice Services (DCJS). The Act requires the registration of individuals convicted in New York State of a sex offense, as well as the registration of individuals convicted in another jurisdiction if certain statutory criteria are met. Individuals register with DCJS on a form created by that agency. The information provided on the registration form is made available to law enforcement. (Correction Law § 168-j). The information is further disseminated by law enforcement as provided by Correction Law § 168-l (6), by internet (Correction Law § 168-q), and by a special telephone number (Correction Law § 168-p).
The Act created a Board of Examiners of Sex Offenders (Board). (Correction Law § 168-l ) which was authorized to “develop guidelines and procedures to assess the risk of a repeat offense by such sex offender and the threat posed to the public safety.” (Correction Law § 168-l ). The Board created a risk assessment instrument (RAI) to purportedly “provide a risk level combining risk of reoffense and danger posed by a sex offender.” (Guidelines p. 3). The Board also developed the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (Guidelines). The Guidelines were originally published in 1996, republished in 1997, and slightly revised and republished in 2006. A copy of the 2006 edition of the Guidelines is included in the Appendix.
The Act provides for three levels of risk classification: level 1 (low risk), level 2 (moderate risk) and level 3 (high risk). It also provides for the designation of a person as a “sexual predator,” “sexually violent offender” or a “predicate sex offender.” The level of risk determines the duration of time on the registry, the amount of information that can be disseminated about the registrant, and the reporting requirements. The designations, along with the risk level, govern the length of time a person has to be on the registry. The RAI is used by the Board to make a recommendation to the courts as to the person’s presumptive risk level, override, designation and departure. The court makes the determinations, and it is not bound by the Board’s recommendation.
A person determined to be a risk level 1 must register for 20 years, although, if also designated as a “sexual predator,” “sexually violent offender” or a “predicate sex offender,” the duration of registration is for life. People determined to be a risk level 2 or 3 must register for life, however, a person classified as a risk level 2 may petition to be relieved of the duty to register after 30 years. (Correction Law § 168-o ). A designation as a “sexual predator,” “sexually violent offender” or a “predicate sex offender” means that a person at level 2 cannot petition to be relieved after 30 years, and a level 2 or 3, even if modified down to level 2 or 1, must register for life.
The implications of risk level and designation are substantial. People classified as risk level 3 or whose victim was under the age of eighteen at the time of the offense are subject to additional statutory restrictions while on probation, conditional discharge, or parole concerning their presence within 1,000 feet of school grounds and their use of the internet. Executive Law § 259-c (14), (15) and Penal Law § 65.10 (4-a).
HISTORY OF SORA
SORA was enacted on July 25, 1995, and became effective on January 21, 1996. Over the years, it has been amended more than twenty times. Every single amendment of the SORA statutes, except one, made the requirements more rigorous, expanded the scope, and generally tightened the screws on people subject to the Act. The only amendment to SORA that expanded the rights of people subject to registration occurred in 1999 and became effective on January 1, 2000. It did not come voluntarily and it did not come without a fight.
Within six weeks of SORA’s effective date, the Legal Aid Society commenced a constitutional challenge to SORA in Federal District Court for the Southern District of New York. Captioned Doe v. Pataki, this litigation was brilliantly fought by the attorneys of the Legal Aid Society over a period of eleven years. In 1998, during one iteration of this protracted litigation, this District Court held that SORA violated the procedural due process rights of the plaintiffs. Doe v. Pataki, 3 F. Supp. 2d 456, 471-472 (S.D.N.Y. 1998). The court found that there were seven procedures required by due process for a SORA hearing: 1) a hearing before a court and a judicial determination of the risk level, 2) notice of the classification hearing sufficiently in advance to prepare a challenge, 3) notice of the purpose of the proceeding, 4) representation by counsel, 5) pre-hearing discovery, 6) proof by the state of the facts supporting each risk factor by clear and convincing evidence, and 7) a right to appeal. SORA was sorely lacking. With its back up against the wall, the New York legislature begrudgingly adopted the due process rights required by Judge Chin.
The due process requirements were amended into SORA effective January 1, 2000. The new procedural due process requirements were prospective, applicable to all risk determinations conducted after the effective date, but did not provide for redetermination of risk previously assigned without due process. Redetermination hearings would come by way of a Stipulation of Settlement, four years later.
When first enacted, SORA required registration annually for ten years for all three risk levels. There was a category of “sexually violent predator” required to register for at least ten years and potentially for life, however, all registrants had the right to petition the sentencing court to be relieved of the duty to register. The failure to register was punishable as a misdemeanor for a first-time offense.
Over the next eight years SORA was amended, becoming increasingly punitive. Effective January 21, 2001 internet availability of the subdirectory was made mandatory by the amendment of Correction Law § 168-q. The Sexual Assault Reform Act (SARA) became effective on February 1, 2001 restricting any registrant on parole or probation from entering onto school grounds.
Effective March 11, 2002 SORA was amended to create three categories of designation, “sexually violent offender,” “sexual predator,” and “predicate sex offender.” Any registrant so designated was required to register for life, and there would be no right to petition to be relieved of the duty to register and no right to modification of the lifetime registration. Level 1 and level 2 registrants were still required to register for “only” ten years. Level 3 registrants were now made to register for life, however, for people on the registry as a risk level 3 prior to March 11, 2002, they could petition to be relieved of the duty to register after thirteen years. With the amendment of the statute adding these three categories of designation, the former term “sexually violent predator” was removed from the statute. As a practical matter, the Legislature took the former category, “sexually violent predator,” and split its definition into the two categories that would become “sexually violent offender” and “sexual predator.”
In 2006, just as the ten-year registration period was about to end for many risk level 1 and 2 registrants, the legislature amended SORA to increase the period of required registration. This amendment became effective on January 18, 2006. For risk level 1 it was increased from 10 years to 20 years. For risk level 2 it was increased from ten years to life, with the right to petition for relief after 30 years, and the right to seek modification down to a level 1. For risk level 3 the period of registration remained life with the right to seek modification downward. The right previously provided by the statute for a person classified as risk level 1 or risk level 3 to seek to be relieved from registration was amended to strip out that language. (Correction Law § 168-h and § 168-o).
Effective June 23, 2006 the scope of community notification was expanded for risk levels 1 and 2. Effective April 12, 2006 the requirement for submitting to photographing was expanded.
SARA was amended effective September 1, 2006 expanding its repressive restrictions in two significant respects. First, it expanded SARA to include all risk level 3 registrants on parole, probation or conditional discharge. Second, it expanded the definition of school grounds to create a 1000 feet buffer zone around any school property, thus making it increasingly difficult for registrants to find housing, while also restricting their ability to find employment.
Effective August 17, 2007 a first offense for failure to register was increased from a misdemeanor to a class E. felony. (Correction Law § 168-t)
On April 28, 2008 the Electronic Security and Targeting of Online Predators Act (E-STOP) became effective. This amendment to SORA restricted the use of the internet as a condition of parole, probation and conditional discharge and required all registrants to register with DCJS any internet account with internet access providers belonging to the registrant and internet identifies used by such person.
When first enacted in 1996, SORA applied to 30 “sex offenses” including attempts. By 2013 the state Legislature had repeatedly amended SORA to widen its net to extend to over 100 offenses. People v. Parilla, 109 A.D.3d 20, 28 (1st Dept. 2013).
This is not an exhaustive review of the amendments to SORA, but simply an attempt to identify some of the significant changes that have been made over the years.
SORA was enacted into law in 1995 and became effective on January 21, 1996. Since that time a number of changes have been made to the original Act. Some changes came about as a result of litigation by The Legal Aid Society, as it pressed for due process requirements to be added to the woefully inadequate initial legislation. Most other changes occurred as a result of a political and legislative process that continually tightened the screws on this disfavored population.
WHO MUST REGISTER UNDER SORA?
Any person convicted of a sex offense (Correction Law § 168-a ) or a sexually violent offense (Correction Law § 168-a ) in New York on or after January 21, 1996, or who was serving a sentence on parole or probation, or was incarcerated for such an offense as of January 21, 1996, must register. The net was further extended by the Court of Appeals in People v. Buss, 11 N.Y.3d 553 (2008) when the court held that the sentences for a non-sex offense and a sex offense are merged or aggregated, therefore even if the term of the sex offense had lapsed prior to January 21, 1996, if the longer concurrent non-sex offense sentence was still running, the defendant was subject to registration.
A list of registrable offenses is included in Chapter 11 on Charts and Checklists.
A person convicted in another jurisdiction of certain offenses and who establishes residence in New York may have to register in New York as determined by the Board. Convictions in other jurisdictions include federal, military, other states or another countries. A person convicted in another jurisdiction of an offense that includes all of the essential elements of a sex offense as defined in Correction
Law § 168-a (2) must register in New York. A person convicted of a felony in another jurisdiction for which the person is required to register as a sex offender in the jurisdiction in which the conviction occurred must also register in New York.3 A person must register in New York if convicted of any of the provisions of 18 U.S.C. 2251, 18 U.S.C 2251A, 18 U.S.C. 2252, 18 U.S.C. 2252A, 18 U.S.C. 2260, 18 U.S.C. 2422(b) 18 U.S.C. 2423, or 18 U.S.C. 2425, provided that the elements of such crime of conviction are substantially the same as those which are a part of such offense as of the date on which this subparagraph takes effect. (Correction Law § 168-a (2)[d]). Also required to register in New York are people convicted in other jurisdictions for offenses which includes all of the essential elements of a “sexually violent offense” as defined in Correction Law § 168-a (3), or convicted of a felony in any other jurisdiction for which the they are required to register as a sex offender in the jurisdiction in which the conviction occurred.
3 But See People v. Diaz, 32 N.Y.3d 538 (2018).
PURPOSE OF SORA
The ostensible purpose of SORA is “both to protect members of the public, especially vulnerable populations, from sex offenders by notifying them of the presence of sex offenders in their communities and to enhance law enforcement authorities’ ability to investigate and prosecute sex offenses.” Doe v. Pataki, 481 F.3d 69, 70 (2d Cir. 2007).
BOARD OF EXAMINERS OF SEX OFFENDERS (BOARD)
SORA establishes a Board that consists of five members appointed by the governor. All members are required to be employees of the Department of Corrections and Community Supervisions (DOCCS), and experts in the field of the behavior and treatment of people who have sexually offended. (Correction Law § 168-l ). The Board is responsible for developing guidelines and procedures to assess the risk of repeat offense and threat posed to public safety. (Correction Law § 168-l ). Another responsibility of the Board is to make a recommendation to the sentencing court as to whether the defendant warrants the designation of “sexual predator,” “sexually violent offender” or a “predicate sex offender,” and a recommendation as to one of three levels of risk, low, moderate or high.
Of the three categories of SORA cases, the Board recommendation is only applicable to two. The Board makes its recommendation in cases involving people returning to the community after being sentenced to jail or prison. It also makes a recommendation in cases involving people convicted in another jurisdiction that have changed their residence to New York. The Board does not, however, make a recommendation in cases where people are sentenced to probation, a split sentence, conditional discharge, unconditional discharge or a fine. In the first two categories of cases, a court cannot make a SORA determination without a Board recommendation. People v. Black, 33 A.D.3d 981 (2d Dept. 2006).
It is important to keep in mind, and to remind the judge, that the Board prepared RAI is “merely a recommendation.” People v. Douglas, 18 A.D.3d 967, 968 (3d Dept. 2005). The Board “serves only in an advisory capacity.” People v. Johnson, 11 N.Y.3d 416, 421 (2008), Matter of New York State Board of Examiners of Sex Offenders v. Ransom, 249 A.D.2d 891 (4th Dept. 1998). The Board’s recommendation “is similar to the role served by a probation department in submitting a sentencing recommendation.” People v. Johnson, 11 N.Y.3d at 421. “The court, however, is not bound by the recommendation of the Board and, in the exercise of its discretion, may depart from that recommendation and determine the sex offender’s risk level based upon the facts and circumstances that appear in the record.” Matter of New York State Board of Examiners of Sex Offenders v. Ransom, 249 A.D.2d at 891-892, cited with approval in Vandover v. Czajka, 276 A.D.2d 945 (3d Dept. 2000). See also People v. Arotin, 19 A.D.3d 845 (3d Dept. 2005). “The statute (Correction Law § 168-n) directs the court to consider the same guidelines factors the Board is directed to consider and reach its own determination, after reviewing the Board’s recommendation and conducting a hearing.” People v. Santos, 25 Misc. 3d 1212(A) (Sup. Ct. N.Y. Co. 2009).
RISK ASSESSMENT INSTRUMENT (RAI)
The Board developed the RAI and the Guidelines. The Guidelines discuss the general principles that underlie the RAI and explain the specific factors included in them. In the Guidelines, the Board cautions that “[n]o one should attempt to assess a sex offender’s level of risk without first carefully studying this commentary.” Guidelines p. 1. And no one should attempt to defend a SORA case without first carefully studying the Guidelines. The Guidelines are a guide to understanding the RAI and are widely cited and used by courts in setting risk levels.
The Board created a mathematical RAI in the form of a scoring sheet that is divided into four parts: Current Offense(s); Criminal History; Post-Offense Behavior; and Release Environment, with a total of 15 r4isk factors. In each of the four parts are several risk factors. The RAI assigns numerical values to each of the 15 risk factors. All risk factors can be assessed 0 points, and points range from 5 to 30 depending on the particular risk factor. The presumptive risk level is then calculated by adding the points that are scored for each risk factor. People who score from 0 to 70 points under the instrument are presumptively level 1; people who score from 75 to 105 points are presumptively level 2; and people who score from 110 to 300 points are presumptively level 3. The instrument also provides four “overrides” which make a person presumptively a level 3 regardless of the risk factor score. The “overrides” are:
1) Person4 has a prior conviction for a sex crime
2) Person who inflicted serious physical injury or caused death
4 The RAI uses the term offender to describe the person in each of these override categories. Consistent with the preface, I have elected to replace that dehumanizing terminology with the word “person.”
3) The person has made a recent threat that he will reoffend by committing a sexual or violent crime
4) There has been a clinical assessment that the person has a psychological, physical or organic abnormality that decreases ability to control impulsive sexual behavior
The RAI allows a court to depart upward or downward from the presumptive risk level created by the total risk score and the overrides, if applicable. The Guidelines provide that a court may not depart from the presumptive risk level unless it concludes that there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines. (Guidelines p. 4).
Once the risk level is established, the court must make one more determination. Attached to the RAI chart are three pages entitled Sex Offender Designation Form. This form provides the court with the Board and/or prosecution’s recommendation as to whether a designation is warranted. The court is required to determine whether the defendant warrants designation in any of the three categories as a sexually violent offender, a predicate sex offender or a sexual predator as defined in Correction Law § 168-a (7), or whether none of the three categories is applicable.
Scoring of the RAI and the risk factors is discussed in Chapter 3 on Scoring the Risk Assessment Instrument. Overrides, designations and departures are discussed in the corresponding Chapters for each.
The burden of proof is placed on the prosecution to prove each of the risk factors, overrides, designations and aggravating factors warranting an upward departure by clear and convincing evidence. The only burden of proof that is borne by the defendant is to prove mitigating factors that warrant a downward departure, and that burden is by a preponderance of the evidence. A complete discussion of the burden of proof is included in Chapter 8 on Selected Issues.