People v. David W.

• Decision Date: 15 June 2000
• Citation: 95 N.Y.2d 130,733 N.E.2d 206,711 N.Y.S.2d 134
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID W., Appellant.
• Court: New York Court of Appeals Court of Appeals

95 N.Y.2d 130

733 N.E.2d 206

711 N.Y.S.2d 134

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID W., Appellant.

Court of Appeals of the State of New York.

Argued May 4, 2000.

Decided June 15, 2000.

Charles M. Newell, Quogue, for appellant.

James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (William T. Ferris and Ronald E. Lipetz of counsel), for respondent.

Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, WESLEY and ROSENBLATT concur.

OPINION OF THE COURT

CIPARICK, J.

Does an individual convicted of a sex offense have a constitutional right to notice and an opportunity to be heard before being classified as a sexually violent predator under the Sex Offender Registration Act (SORA)—New York's "Megan's Law?" In the case before us, we hold that procedural due process requires that this defendant, on probation when SORA went into effect, should have received notice and an opportunity to be heard before his SORA risk level determination was made.

I

Defendant David W. appeals from his conviction, after a jury trial in Justice Court in November 1997, of failing to register as a sex offender under the SORA (Correction Law § 168-g [2]; § 168-t). The duty to register was based on defendant's judgment of conviction in Supreme Court in May 1995 upon his plea of guilty to charges of sodomy in the second degree and sexual abuse in the first degree. These charges arose out of defendant's sexual contact with two underage victims. Having served his concurrent 90-day jail sentences for these crimes, defendant had yet to complete his five-year term of probation when SORA went into effect on January 21, 1996. As a result, defendant was required to register as a sex offender (Correction Law §§ 168-a, 168-g). His probation officer sent defendant a letter informing him of this obligation along with a "Sex Offender Registration Form," a "Risk Assessment Instrument" and a "Notice of Risk Level Assessment."

These documents notified defendant that he had been assigned a risk level determination of "3," indicating that he represented the highest risk under SORA and was a "sexually violent predator" (Correction Law § 168-l [6] [c]). A level three designation permits a law enforcement agency having jurisdiction to distribute "the sex offender's name, exact address, a photograph of the offender, background information including the offender's crime of conviction, modus of operation, type of victim" and any other conditions imposed on the offender to "vulnerable populations" (id.). Those receiving this information are at liberty to further disseminate this information "at their discretion" (id.). Risk level three designees also are subject to registration requirements for a minimum of 10 years and must verify their address and registration information every 90 days with local law enforcement (Correction Law § 168-d [3]; § 168-f [3]; § 168-h), while those at risk level one or two must register annually for 10 years (Correction Law § 168-f [2]; § 168-h).

On advice of counsel, defendant refused to sign and return the sex offender registration notice classifying him at risk level three. At no time before the risk level determination did defendant receive notice that a determination was being made, he was not notified of the information relied upon to make the determination, nor did he receive a hearing or any opportunity to be heard. Instead, the initial determination was made by an employee of the Division of Probation and Correctional Alternatives (DPCA) pursuant to Correction Law § 168-g. In this case, the determination was made by an employee of the Suffolk County Probation Department, who had received one day of training in the guidelines established by the Board of Examiners of Sex Offenders. The Board's Risk Assessment Guidelines provide an explanation of the various characteristics to be examined by those filling out the "Risk Assessment Instrument."

The "Risk Assessment Instrument" is a chart divided into four risk factors: current offense(s); criminal history; post-offense behavior; and release environment (see, Correction Law § 168-l). Within each of these factors, there are several specific issues that a probation officer must analyze, and depending on whether defendant or his conduct exhibits certain characteristics, points are assigned. When totaled, the points for all risk factors determine an individual's presumptive SORA risk level, except that there are certain "overrides" not relied on by the Probation Department here, which will result in the offender being classified as a risk level three. According to the DPCA, the presumptive SORA risk level is reviewed by another employee of DPCA or, as here, by one member of the Board of Examiners of Sex Offenders before the final risk level determination is sent to the probationer.

Defendant received 125 points, which placed him above the 110 point threshold for a sexually violent predator, and thus was determined to be a risk level three. Although no statute or regulation provides for it, the Notice of Risk Level Assessment offered defendant the opportunity to seek review of the determination with DPCA. Defendant took advantage of this review, and challenged his risk level classification and DPCA's characterization of the offenses. Specifically, he disputed the points assigned regarding "the allegation of forcible compulsion [10], the relationship with the victim [20] and the acceptance of responsibility [10]." Without explicitly addressing these objections or identifying the information upon which the challenged factors were analyzed, the DPCA sent a letter to defendant stating that the level three determination had been correctly made.

Upon refusal to sign the form classifying him as a sexually violent predator, defendant was charged with failure to register under Correction Law §§ 168-g and 168-t. Defendant moved to dismiss the information charging him with failure to register on the grounds that SORA violated the ex post facto, equal protection and due process guarantees of the United States and New York Constitutions. The Justice Court rejected these challenges, and after the trial, sentenced defendant to a term of one year of imprisonment.¹ The Appellate Term affirmed and rejected defendant's ex post facto and equal protection challenges. Regarding defendant's due process claims, the Appellate Term held that SORA's provision allowing a sex offender to petition the sentencing court for relief from the further duty to register (Correction Law § 168-g [4]; § 168-o) and the availability of an article 78 proceeding to review DPCA's determination "effectively minimized the risk of an erroneous deprivation of defendant's private interest."²

A Judge of this Court having granted defendant leave to appeal, defendant presses only his claims of due process and equal protection violations. Concluding that defendant was not afforded the process he was due in determining his SORA risk level, we reverse and reach no other issue.

II

The commonsense principle at the heart of the due process guarantees in the United States and New York Constitutions is that when the State seeks to take life, liberty or property from an individual, the State must provide effective procedures that guard against an erroneous deprivation (US Const, Amend XIV, § 1; NY Const, art I, § 6; Mathews v Eldridge, 424 US 319, 334-335; Wisconsin v Constantineau, 400 US 433, 436 ["(I)t is procedure that marks much of the difference between rule by law and rule by fiat"]). Due process, however, is a flexible concept that

"generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." (Mathews v Eldridge, supra, at 335.)

Here, the procedures that the State has employed are inadequate to mitigate the risk of an erroneous determination that a sex offender on probation is a sexually violent predator.

Defendant's private interest, his liberty interest in not being stigmatized as a sexually violent predator, is substantial (see, E.B. v Verniero, 119 F3d 1077, 1107

[3d Cir]; Doe v Pataki, 3 F Supp 2d 456, 469 [SD NY]). The ramifications of being classified and having that information disseminated fall squarely within those cases that recognize a liberty interest where there is some stigma to one's good name, reputation or integrity, coupled with some more "tangible" interest that is affected or a legal right that is altered (Matter of Lee TT. v Dowling, 87 NY2d 699, 708 [placing petitioners' names on Central Register of Child Abuse and Maltreatment foreclosed future child care employment and satisfied "stigma plus" test]; see, Paul v Davis, 424 US 693; Wisconsin v Constantineau, supra, at 437; Valmonte v Bane, 18 F3d 992). More than "name calling by public officials," the sexually violent predator label "is a determination of status" that can have a considerable adverse impact on an individual's ability to live in a community and obtain or maintain employment (see, Paul v Davis, supra, at 703 [internal quotations omitted]). A level three classification imposes significant burdens. Not only is one identified as a "sexually violent predator," but also this information along with the individual's name and "exact" address can be widely disseminated to and by any "entity with vulnerable populations related to the nature of the offense committed by such sex offender" (Correction Law § 168-l [6] [c]). Additionally, a level three sex offender must by photograph, description and exact address, along with other identifying information, appear in a "sexually violent...