89 A.D.3d 171
N.Y. App. Div.2011Background
- Bowles pled guilty to unlawful imprisonment in the second degree, a misdemeanor, tied to a sexual assault/rape of a 14-year-old with codefendants while Bowles acted as lookout.
- During the incident Bowles held the victim to facilitate removal of her pants and acted in concert with codefendants.
- In 2001 Bowles received 10 days in jail with three years’ postrelease supervision.
- A SORA risk assessment (RAI) yielded 95 points, including 25 points for sexual contact with the victim, supporting a level two designation.
- At the hearing on November 13, 2008 Bowles did not appear; the court accepted the RAI and designated level two after defense objected to the 25-point risk-factor 2 score.
- Bowles argued the 25 points relied on accessorial liability and requested a downward departure, which the court declined, affirming level two.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to effective assistance in SORA | Bowles claims ineffective assistance of counsel at the SORA hearing. | Bowles contends counsel failed to pursue a downward departure and other arguments. | Yes, Bowles has a due process right to counsel; but counsel provided meaningful representation. |
| Proper scoring under risk factor 2 for sexual contact | 25 points under risk factor 2 were improper because Bowles did not have sexual intercourse with the victim. | Court properly applied accessorial liability; Bowles aided the assault and thus merits 25 points. | 25 points properly assessed; inference from lookout and physical involvement supports liability. |
| Downward departure to level one and effectiveness | Court should downwardly depart to level one and defense counsel was ineffective for not requesting it. | Request for departure was unpreserved/meritsless; counsel's performance was not ineffective. | Downward departure not warranted; counsel provided meaningful representation; order affirmed. |
Key Cases Cited
- People v Pettigrew, 14 N.Y.3d 406 (2010) (court emphasizes court’s discretion in SORA risk scoring)
- People v Baldi, 54 N.Y.2d 137 (1981) (flexible standard for effective assistance of counsel in NY)
- Anders v. California, 386 U.S. 738 (1967) (duty of counsel to advise and submit nonfrivolous appeal)
- People v David W., 95 N.Y.2d 130 (2000) (due process in SORA context; notification and hearings)
- People v Stevens, 91 N.Y.2d 270 (1998) (risk level determinations are not criminal actions; due process implications)
- People v Mingo, 12 N.Y.3d 563 (2009) (trustworthy evidence supports risk scoring and findings)