People v. Ross

• Decision Date: 02 July 1996
• Citation: 646 N.Y.S.2d 249,169 Misc.2d 308
• Court: New York Supreme Court
• Parties: The PEOPLE of the State of New York, Plaintiff, v. James ROSS, Defendant.

Page 249

646 N.Y.S.2d 249

169 Misc.2d 308

The PEOPLE of the State of New York, Plaintiff, v. James ROSS, Defendant.

Supreme Court, New York County.

July 2, 1996.

Robert Jaffe, New York City, for defendant.

Robert M. Morgenthau, District Attorney of New York County (Martha Bashford, of counsel), for plaintiff.

HAROLD TOMPKINS, Justice.

The nature of the hearing required under New York State's Sex Offender Registration Act, Corrections Law § 168 et seq. is the issue before this Court. It arises in the context of defendant James Ross' challenge to the Board of Examiners' recommendation that Mr. Ross be classified as a level three sex offender. This is the first case interpreting New York's new Sex Offender Registration Act.

THE SEX OFFENDER STATUTE

Article 6-C of the Corrections Law (Section 168-168-v, Laws of 1995, Chapter 192) was adopted on July 25, 1995 and became effective on January 26, 1996. This statute is New York State's version of "Megan's Law" adopted in memory of 7-year-old Megan Kanka, who was abducted, sexually assaulted and murdered in July 1994 by a sex offender with a history of numerous prior sexual offenses who lived across the street. The law establishes a system requiring sexual offenders to register with appropriate governmental authorities. Every state requires sex offenders to register and notify law enforcement officials of appropriate information such as address and employment. ¹

The Federal Violent Crime Control and Law Enforcement Act of 1994 requires states to register and track convicted sex offenders for 10 years after release and to notify law enforcement officials in the local community to obtain full federal financing provided in that law, 42 U.S.C. § 14071 et seq. Recently, this statute was amended to require release of relevant information necessary to protect the public or community notification, P.L. 104-145. A majority of states require notification to the community or access by the public to information on convicted sex offenders. A prime purpose is to allow parents the knowledge as to convicted sex offenders in their neighborhood so they can take appropriate safeguards for their children. The constitutionality of applying community notification retroactively is currently unsettled. Judge Chin enjoined enforcement of the community notification portions of New York's law, but permitted registration to continue, Doe v. Pataki, 919 F.Supp. 691 (S.D.N.Y.1996).

New York's statute establishes a Board of Examiners of Sex Offenders, Corrections Law § 168-l. The Board reviews each case to determine whether the individual is a sex offender and assess a risk classification based upon the likelihood of future offenses and the threat to the community for notification purposes. Offenders must register periodically and on any relocation or other change in condition. Failure to register is a Class A misdemeanor for a first offense and a Class D felony for subsequent offenses. It may also be considered a violation of parole.

The law establishes three levels of community notification or public access. A level one designation is the lowest level and provides for information to be given only to the enforcement agencies having jurisdiction over the individual. A level two or moderate designation authorizes the law enforcement agencies to disseminate relevant information including approximate address, photograph, background of the crime, type of victim to entities with vulnerable populations. For the level three, high risk category, the law enforcement entities may provide the offender's exact address, photograph, background information to any entity with vulnerable populations and also provide the information to a directory available at local police stations. Members of the public can call a "900" telephone number to ascertain whether a specific named individual is listed and obtain information on him.

A person classified as a sex offender may challenge his determination and the classification level recommended by the Board of Sex Offenders, Corrections Law § 168-h, 168-o. The court may review any victim's statement. The offender has the right to appear, be heard and have counsel appointed. The nature of this hearing is the issue presented in this matter.

LEGISLATIVE HISTORY

The Court has obtained the Bill Jacket of 68 pages for Chapter 192 of the Laws of 1995. It also reviewed the Senate Debate Transcript of 106 pages and the Assembly Debate Transcript of 132 pages. ² The primary purpose of the statute is to provide parents and communities with information as to potential risks from convicted sex offenders.

The legislative debate centered on safety risks to children if community notification was not enacted and concerns of vigilantism by opponents of the legislation. By adopting the bill, the legislature expressed its belief that the law was a regulatory mechanism to supervise individuals rather than a punitive measure. In providing for a court review of the Board of Sex Offenders' recommendation, the bill's sponsor, Senator Skelos, noted, Senate Debate at 6631-6633, that the sentencing court would review the Board's recommendation and that there would be a "fully litigated opportunity to resolve factual issues or legal issues" id. at 6632.

THE HEARING

The Board identifies the risk of a repeat offense by considering the offender's conduct, including drug or alcohol use, age of the victim, age of the offender, relationship between the offender and victim, if any, number of victims, use of a weapon or the infliction of serious bodily injury, psychological profile of the offender, the response to treatment, recent behavior and any other factors it considers appropriate. The Board evaluates these factors and determines the appropriate risk category. The offender is notified of the assessment and the factors considered and relied upon by the Board.

The offender who wishes to challenge this assessment is in the position of bringing forth evidence to controvert the Board's finding. If the Board finds, for example, that the offender's recent behavior was poor and his psychological profile indicates a lack of remorse, the offender has been given notice that the Board relied on these factors and his opportunity to be heard requires him to present evidence to controvert the Board's finding. Due process requires that the offender be given notice of

                the proposed classification, the basis for the Board's determination and an opportunity to present evidence at the determinative hearing, see e.g. People v. Recor, 209 A.D.2d 831, 619 N.Y.S.2d 186 (3rd Dept.1994);  People ex rel Scherz v. Dennison, 209 A.D.2d 200, 618 N.Y.S.2d 289 (1st Dept.1994).  The statute does not specify any requirements and therefore only the constitutional requirements of due process, notice and an opportunity to be heard are mandated, see  Dennison, supra.   In contesting these findings, the person who challenges them should have the burden of proof since he is in the best position to bring forth evidence controverting the Board's recommendations, see People v. Patterson, 39 N.Y.2d 288, 305, 383 N.Y.S.2d 573, 347 N.E.2d 898 (1976) [Breitel, J. Conc.] affd sub.nom. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977);  People v. Esquivel, 158 Misc.2d 720, 601 N.Y.S.2d 541 (Sup.Ct.N.Y., Cty.1993).  This post-trial, post-conviction hearing is not for adjudicating guilt but rather for supervising released offenders, see e.g. People v. Minard, 161 A.D.2d 607, 555 N.Y.S.2d 182 (2nd Dept.1990).  It is an administrative function and the Court should therefore review the Board's recommendations only for arbitrariness and capriciousness and otherwise uphold them, see Siegel, New York Practice (2nd Edition 1991) § 561;  Pell v. Board of Education, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 (1974)
                

PROCEDURAL HISTORY

In this case, Ross was indicted for rape in the 1st degree. On July 23, 1993, he pleaded guilty to attempted rape in the 1st degree. He was sentenced to an agreed term of incarceration of one-and-one-half years to four-and-one-half years. He was released on February 13, 1996. On March 20, 1996, the Board of Sex Offenders evaluated the statutory factors. It noted the risk factors included that defendant's conviction involved a stranger, that two victims between the ages of 11 and 16 years old were involved, the defendant was armed with a dangerous instrument, that intercourse occurred and that the victims were incapacitated. The Board classified Mr. Ross as a high risk, level three sex offender and on April 8, 1996, it notified him of this recommendation and...