Doe v. Pataki
| Decision Date | 07 May 1998 |
| Docket Number | No. 96 CIV. 1657(DC).,96 CIV. 1657(DC). |
| Citation | 3 F.Supp.2d 456 |
| Parties | John DOE, Richard Roe, and Samuel Poe, individually and on behalf of all other persons similarly situated, Plaintiffs, v. Hon. George E. PATAKI, in his official capacity as Governor of the State of New York, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Thomas M. O'Brien, Susan L. Hendricks, Laura R. Johnson, The Legal Aid Society, Criminal Defense Division, Special Litigation Unit, New York City, for Plaintiffs.
Dennis C. Vacco, Attorney General of the State of New York by Christine E. Morrison, Assistant Attorney General, New York City, for Defendants.
In this case, plaintiffs continue their challenge to the constitutionality of the New York State Sex Offender Registration Act, N.Y. Correction Law §§ 168 to 168-v (McKinney Supp.1996) (the "Act"), as applied to individuals who committed their crimes before the Act took effect. Their ex post facto claim having been rejected by the Second Circuit, plaintiffs now press their due process claims, contending that the Act, on its face and as applied, deprives them of their right to due process of law under the Fourteenth Amendment.
Two groups of individuals seek relief. First, the named plaintiffs represent the class of those convicted sex offenders who were on probation or parole on January 21, 1996, the date the Act took effect, and who were administratively given risk level classifications (the "Probationer-Parolee class"). Second, plaintiffs seek to add an additional class of plaintiffs, comprised of individuals who were still incarcerated on January 21, 1996, but who have been or will be released from custody and assigned risk level classifications at judicial hearings pursuant to § 168-n of the Act (the "Proposed Additional class").
Before the Court are (i) the parties' cross-motions for summary judgment with respect to the claims of the Probationer-Parolee class, (ii) plaintiffs' motion for leave to amend the complaint to add claims on behalf of the Proposed Additional class, and (iii) plaintiffs' motion for a preliminary injunction in favor of the Proposed Additional class.
For the reasons set forth more fully below, plaintiffs' motions are granted and defendants' cross-motion for summary judgment is denied, for I hold that plaintiffs are entitled to due process in the classification proceedings under the Act and that plaintiffs have not been afforded the minimal due process protection required by the Constitution.
The case of proposed plaintiff Charles Coe illustrates vividly the deficiencies in the process of assigning risk levels under the Act. Coe pled guilty in 1990 to attempted sexual abuse for kissing a neighbor and touching her breasts while riding in an elevator. At his sentencing in December 1990, the court noted that Coe suffered from borderline mental retardation. In December 1996, Coe received a notice advising him that the court was required to make a "final determination" of his risk level under the Act. The notice did not advise Coe of his proposed classification or the ramifications thereof. Although he had been found indigent and was represented by Legal Aid in the earlier criminal proceedings, no lawyer was notified to appear at the classification hearing on his behalf. (Hendricks Decl. ¶¶ 11-12 & Ex. B).
At the classification hearing, the court read from a document, provided by the Board of Examiners of Sex Offenders (the "Board"), that incorrectly described the case as one that involved, not kissing and grabbing someone on an elevator, but sexual contact with a 15-year-old girl, including pulling her pants down and lying on top of her. The report stated, incorrectly, that Coe had been charged with rape. The court noted that the Board had recommended that Coe be classified at risk level two, and ruled that it was going to "adhere" to the Board's recommendation. (Hendricks Decl. ¶¶ 13-14 & Ex. C at 2; compare Hendricks Decl. Ex. B).
Coe, who appeared without a lawyer, attempted to tell the court that "[t]he description of the crime ... [was] totally different from what originally happened." (Hendricks Decl. Ex. C at 3). The court responded as follows:
The Board has given me a summary of what happened, and the Board — based upon what they have recommended that you receive, risk level two, I don't agree with it wholly, but the law is there and I must carry it out as long as I sit on the bench....
(Id. at 4). The court refused to change its classification of Coe as a risk level two. The court did not inform Coe that he had a right to a lawyer. The court did advise Coe to contact a lawyer and apparently gave him the name and telephone number of Legal Aid, but the court did not do so until after it had classified Coe as a risk level two. (Id. at 4-7).
Coe did contact Legal Aid at that point, and a timely notice of appeal was filed on his behalf. The Appellate Division, First Department, however, dismissed the appeal sua sponte, holding that "[n]o avenue exists to appeal a judicial determination of a sex offender's risk assessment under [the Act]." 240 A.D.2d 351, 660 N.Y.S.2d 714, 714 (1st Dep't 1997). Although the court stated that "we recognize that the lack of provision for appellate review may raise constitutional questions as to this portion of the statute," the court held that "that issue is not before us." Id. Coe then sought review from the New York State Court of Appeals, but his application for leave to appeal was denied. 91 N.Y.2d 912, 669 N.Y.S.2d 256, 692 N.E.2d 125 (Ct.App.1998).
Hence, Coe was assigned risk level two, a classification that subjects him to community notification, on the basis of an incorrect report that recited facts from the wrong case. Moreover, the "hearing" could not have lasted much more than five minutes, and Coe, who apparently was indigent and borderline mentally retarded, was not provided with counsel or prior notice of the Board's recommendation or disclosure of the evidence relied on by the Board. Although the court noted that it did not "wholly" agree with the Board, it concluded that it was required to adhere to the Board's recommendation. Despite these serious problems in the proceedings, Coe was not permitted to appeal.
The case of Samuel Poe provides another example. Poe was convicted of attempted sodomy in 1989. On March 26, 1997, he was produced from prison for a classification hearing. The transcript of the hearing — which is reproduced here in its entirety — speaks for itself:
(Whereupon, the defendant was escorted into the courtroom.)
They've assessed you a total of a hundred and twenty points. Is there anything about that that you contest?
(Hendricks Reply Decl. Ex. A at 2-3). The entire proceeding could not have lasted more than two minutes. Although the assignment of risk level three subjected Poe to the highest level of community notification, he was not represented by counsel; he was not advised that he had a right to counsel; he apparently did not understand what the 120 points meant; he was not advised how the 120 points were calculated; and he was given no meaningful opportunity to challenge his classification. The court undertook no independent review of the Board's risk level recommendation, nor was Poe even provided with a copy of the risk assessment instrument or the case summary.
These two cases provide stark examples of the lack of process provided under the Act. A system that permits a convicted sex offender to be classified at a risk level that subjects him to community notification on the basis of a perfunctory proceeding or incorrect information, that fails to provide a full and fair opportunity to be heard or legal representation, that places the burden on him to prove that the Board's findings were wrong without disclosing to him the bases for those findings, and that offers no avenue for appellate review even in the face of gross error does not pass constitutional muster.
Accordingly, injunctive relief will be granted in favor of plaintiffs, permanently as to members of the Probationer-Parolee class and preliminarily as to members of the Proposed Additional class. Defendants may proceed with the implementation of the Act, but they may not classify members of the Probationer-Parolee class or the Proposed Additional class higher than a risk level one unless these individuals are first given new hearings that comport with the requirements of due process as set forth below.
The substantive provisions of the Act and much of the factual background are set forth in detail in my prior opinions, see Doe v. Pataki, 919 F.Supp. 691 (S.D.N.Y.1996), and Doe v. Pataki, 940 F.Supp. 603 (S.D.N.Y. 1996), as well as in the Second Circuit's opinion affirming in...
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