Doe v. Division of Probation and Correction Alternatives

• Decision Date: 21 January 1997
• Citation: 654 N.Y.S.2d 268,171 Misc.2d 210
• Parties: John DOE, Petitioner, v. DIVISION OF PROBATION AND CORRECTION ALTERNATIVES, Respondent.
• Court: New York Supreme Court

Page 268

654 N.Y.S.2d 268

171 Misc.2d 210

John DOE, Petitioner, v. DIVISION OF PROBATION AND CORRECTION ALTERNATIVES, Respondent.

Supreme Court, Dutchess County.

Jan. 21, 1997.

Kenny & Maserjian, L.L.P., Poughkeepsie, for petitioner.

Dennis C. Vacco, Attorney-General, Poughkeepsie (M. Kevin Coffey of counsel), for respondent.

RALPH A. BEISNER, Justice.

Petition pursuant to CPLR Article 78 annulling the determination of the Division of Probation and Correction Alternatives which designated petitioner a "sexually violent predator" and for judgment declaring Correction Law § 168 et seq. unconstitutional as applied to petitioner. It is ordered that this petition is denied and the proceeding is dismissed.

In 1992 petitioner pled guilty to the crime of Sexual Abuse in the First Degree and was sentenced to six months in the Dutchess County Jail and five years probation. The period of probation is to expire in 1997.

Pursuant to the recently enacted Correction Law Article 6-C, the Sex Offender Registration Act (Correction Law § 168 et seq.) (hereinafter the Act), sex offenders such as petitioner who are on parole or probation for a designated offense on the effective date of the statute, January 21, 1996, as well as those who are in custody, are subject to the registration and notification provisions of the Act (Correction Law § 168-g). The Act creates a board of examiners of sex offenders (the board) which is to develop guidelines and procedures to assess the risk of a repeat offense by a sex offender and the threat posed by the sex offender to public safety.

The risk assessment based on these guidelines will result in a Level 1 designation if the risk of repeat offense is low, a Level 2 designation if the risk of repeat offense is moderate, and a Level 3 designation if the risk of repeat offense is high and there exists a threat to the public safety. A sex offender with a Level 3 designation is deemed to be a sexually violent predator.

The procedure for determining the sex offender's risk assessment depends upon whether the sex offender was incarcerated or institutionalized on the effective date of the Act or was on parole or probation on the effective date. As to those sex offenders who were incarcerated or institutionalized, the risk assessment determination is made by the sentencing court after receiving a recommendation from the board. As to the sex offenders who are on parole or probation on the effective date of the Act, the risk assessment determination is made by the Division of Parole or the Division of Probation and Correction Alternatives (DPCA).

The registration provisions of the Act require sex offenders who are on parole or probation to register with the parole or probation officer. Sex offenders who are incarcerated or institutionalized must register with the Division of Criminal Justice Services after being released from custody. Sex offenders must then register annually for 10 years. A sex offender who is designated a sexually violent predator has more stringent registration requirements and the registration requirement continues for a minimum of 10 years.

The notification provisions of the Act permit law enforcement authorities, in certain circumstances, to notify the public of the identity and whereabouts of registrants. The scope of notification and dissemination of information about the registrants is based upon the assessment level.

The petitioner herein, who was on probation on the effective date of the Act, was advised by the DPCA that he was determined to have a Level 3 designation, i.e., a sexually violent predator (Correction Law 168-l [6][c] ). Petitioner appealed that determination to the DPCA and, by memorandum dated July 8, 1996, his appeal was denied. This proceeding pursuant to CPLR Article 78 ensued.

Petitioner contends that Correction Law § 168 et seq. is unconstitutional as applied to him in that it violates the Ex Post Facto Clause of the federal constitution (U.S. Const., Art. I, § 10), and deprives him of due process and equal protection. Petitioner further argues that the DPCA determination that he has a risk level of 3 is arbitrary and capricious and not based on substantial and clear and convincing evidence.

In a federal action, Doe v. Pataki, the plaintiffs challenged the constitutionality of Correction Law § 168 et seq. as applied to individuals such as petitioner who committed crimes before the Act took effect. The state has agreed to be bound by any rulings in that action and apply them to all similarly situated sex offenders (Doe v. Pataki, 940 F.Supp. 603, 608). On March 21, 1996 the United States District Court preliminarily enjoined the retroactive application of the public notification provisions of Correction Law 168 et seq. (Doe v. Pataki, 919 F.Supp. 691). On September 24, 1996, the District Court granted the plaintiffs in Doe v. Pataki summary judgment on their claim that the retroactive application of the notification provisions of the Act would violate the Ex Post Facto Clause and permanently enjoined defendants from enforcing the public notification provisions against persons who committed their crimes before January 21, 1996 (Doe v. Pataki, 940 F.Supp. 603, 631, supra; but see People v. Afrika, 168 Misc.2d 618, 648 N.Y.S.2d 235). On the other hand, the District Court dismissed with prejudice the claim that the retroactive application of the registration provisions of the Act would violate the Ex Post Facto Clause (Doe v. Pataki, 940 F.Supp. 603, 631, supra). Doe v. Pataki is on appeal to the United States Court of Appeals for the Second Circuit.

Since implementation of the public notification provisions of the Act has been permanently enjoined, the petitioner's constitutional challenges to the notification provisions are not ripe for review and will not be addressed (see generally Church of St. Paul and St. Andrew v. Barwick, 67 N.Y.2d 510, 518, 505 N.Y.S.2d 24, 496 N.E.2d 183).

As to the registration requirement, petitioner first contends that the application of the provisions of Correction Law § 168 et seq. to him violates the Ex Post Facto Clause of the United States Constitution. That clause, U.S. Const. Art. I, § 10, prohibits the enactment of laws which, inter alia, make more burdensome the punishment imposed for a crime after its commission (Collins v. Youngblood, 497 U.S. 37, 52, 110 S.Ct. 2715, 2724, 111 L.Ed.2d 30). The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct is whether the legislative aim was to punish that individual for past activity or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation (DeVeau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1154-55, 4 L.Ed.2d 1109).

Virtually every court that has considered the issue of whether the registration requirement is punishment for purposes of the Ex Post Facto Clause has held that it is not (Doe v. Pataki, 940 F.Supp. 603, 629 [citations omitted ] ). The legislative statement of purpose and findings made in connection with the Act are indicative of an intent to promote public safety rather than punish sex offenders. "Registration will provide law enforcement with additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation promptly." (L.1995, ch. 192, § 1.) The statute's design is remedial rather than punitive and it does...