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New York Sora Sex Offender Registration

By Spodek Law Group | February 13, 2023

New York Sex Offender Registration Act: Protecting the Public from Sexual Offenders

Background and Overview

The New York Sex Offender Registration Act (SORA) is a law that was enacted on January 21, 1996, with the aim of protecting the public from criminal sex offenders. Modeled after New Jersey’s Megan’s Law, SORA requires convicted sex offenders to register with the appropriate law enforcement agencies. It also allows for the dissemination of information about the offender based on an assessment of risk.

Under SORA, the court must determine whether the defendant is a sex offender or a sexually violent predator and the level of notification required. The court relies on the recommendations made by the Board of Examiners of Sex Offenders and the Risk Assessment Instrument (RAI) to assess the risk of a repeat offense and the threat posed to public safety.

Assessing the Risk Level

The RAI assigns a numerical value to various factors, resulting in a “total risk factor score” that determines the offender’s level of notification. Offenders with a low risk of repeat offense are assigned a level one designation, and the appropriate law enforcement agencies are notified pursuant to SORA. Offenders with a moderate risk of repeat offense are assigned a level two designation, and the appropriate law enforcement agencies may disseminate relevant information to entities with vulnerable populations. Offenders with a high risk of repeat offense are assigned a level three designation and are deemed sexually violent predators. Level three offenders are required to disclose their exact address, and all pertinent information is made available to the public.

While the RAI is a key criterion in determining the risk level, the court must also consider the victim’s statement and any materials submitted by the sex offender. The sex offender must also be allowed to appear and be heard. The court may depart from the RAI’s recommendations based on “special circumstances,” recognizing that an objective instrument cannot fully capture the nuances of every case.

The People v. Lombardo Case

In the criminal case of People v. Lombardo, the court exercised its discretion to raise the defendant’s category of notification from level one to level two. The defendant had engaged in sexual misconduct on two separate occasions with two different children aged five and seven, respectively, over a period of several months. While the court found that this conduct was not encompassed by factor four of the RAI, it exercised its discretion based on the totality of the circumstances.

The Case at Bar

In the case at bar, the offender is a native of Turkey who had been in the country for less than a year before his arrest for two separate sexual assaults. The RAI resulted in a total risk factor score of 85, placing the defendant in category two. However, the Board enhanced the defendant’s level of notification to level three due to the commission of two sexual assaults and the Board’s inability to ascertain the defendant’s prior criminal history. The court found that the enhancement of the defendant’s risk level from two to three was unjustified, arbitrary, and capricious. The RAI adequately accounted for the number of victims, and the People’s contention that the details surrounding the defendant’s second offense warranted a higher risk level was bereft of merit.

The Constitutional Proscription of Ex Post Facto Laws

Under the U.S. Constitution, the passage of ex post facto laws by state governments is prohibited. In the case at bar, the commission of the defendant’s crime of child pornography occurred prior to the enactment of SORA

The Legality of SORA: Is it Punitive?

The question on everyone’s mind is whether the provisions of the Sex Offender Registration Act (SORA) can be considered punishment. If it is determined that it is, then retroactive application would undoubtedly violate the ex post facto clause, which prohibits retroactive punishment.

In the groundbreaking case of Doe v. Pataki, the court held that SORA’s public notification and disclosure provisions could not be applied retroactively, but its registration provisions could. This decision had an immediate impact on the ongoing proceedings. If the Pataki ruling is not overturned on appeal, it would prohibit “certain members of the Executive Branch of New York State from enforcing those parts of SORA which provide for public notification, including any notification which could flow from a decision unfavorable to defendant on the instant motion.”

To determine whether SORA constitutes punishment, the court conducted an analytical examination of the law based on four categories: intent, design, history, and effects. The court analyzed the registration and notification provisions separately and concluded that only the notification component of SORA constitutes punishment, thus violating the ex post facto clause.

The court also looked at the subjective and objective intent of the legislature in enacting the law, and it was determined that the legislative intent was primarily punitive in nature. Although the preamble stated a regulatory purpose, a closer examination of the debate minutes of the New York Assembly revealed that the legislature had a punitive intent when enacting SORA.

If you have any inquiries regarding the legal issues tackled in this case, don’t hesitate to seek expert legal counsel. Spodek Law Group, headed by Attorney Todd Spodek, is a highly respected law firm that can provide you with the legal help you need. We have extensive experience in handling cases like these and can guide you through the complexities of the legal system. Contact us today to learn more about how we can help you.

Based on the information provided, it appears that the Board of Examiners of Sex Offenders assigned the defendant a level two designation under the Risk Assessment Instrument (RAI) with a total risk factor score of 85. However, due to the commission of two sexual assaults after having only been in the country for one year, and the Board’s inability to ascertain the defendant’s prior criminal history, the Board deemed it appropriate to enhance defendant’s level of notification to level three.

At the hearing, the defendant appeared and was heard, and the court was informed of the details surrounding the crimes. The People argued that the defendant’s risk level must be enhanced to level three based on the same factors cited by the Board.

It is within the court’s discretion to depart from the guidelines established by the Board of Examiners as set forth in the RAI if special circumstances warrant it. In People v. Lombardo, the court exercised its discretion and raised the defendant’s category of notification from level one to level two based on the totality of the circumstances.

In the case at bar, the court should carefully consider the facts and circumstances of the case and exercise its discretion in determining the appropriate level of notification for the defendant. The details surrounding the crimes, including the use of force and the insertion of the defendant’s penis into the victim’s vagina and anus, may be factors to consider in enhancing the defendant’s level of notification. However, the court should also consider any mitigating factors and the defendant’s willingness to participate in an introductory sex offender program.

Overall, the court should base its determination on the totality of the circumstances and exercise its discretion in accordance with the principles of fairness and justice.

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