109 A.D.3d 20
N.Y. App. Div.2013Background
- Defendant pled guilty to attempted murder in 1996; rape and stabbing occurred in 1993, with a separate rape indictment based on a DNA match from 1993.
- Defendant pled guilty to rape in the first degree and sodomy in the first degree in 2003 and was sentenced in 2003 as a second violent felony offender to 7–14 years, running concurrently with the attempted murder conviction.
- Before release, the Board designated him a level three sexually violent offender based on a 170-point risk assessment and recommended SV offender status.
- SORA amendments since 1996 expanded registration, notification, and related obligations; the act has been found civil/regulatory in nature in prior cases, not punitive.
- Defendant challenged the retroactive application of SORA and its risk-level determination as violative of ex post facto and double jeopardy, and contested specific scoring decisions.
- The court weighed the RAI against defense evidence and upheld a level three designation, correcting certain scoring errors but affirming the result.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SORA as amended is punitive under ex post facto analysis | Defendant argues amendments render SORA punitive. | Defendant contends retroactive application violates ex post facto. | Not punitive; ex post facto not violated. |
| Whether retroactive SORA application violates double jeopardy | Defendant asserts double jeopardy concerns due to amended regime. | Defendant contends retroactive regime constitutes punishment for past offenses. | Not violated; due to civil/regulatory nature. |
| Whether the court properly weighed the risk assessment and designated level three | People rely on RAI as starting point; defendant challenged scoring. | Defendant disputes specific point allocations (e.g., age of victim, prior crimes). | Court correctly adjudicated level three; some scoring corrections noted, but result sustained. |
Key Cases Cited
- Doe v Pataki, 120 F.3d 1263 (2d Cir. 1997) (retroactive SORA not punitive; aims to public safety)
- Smith v. Doe, 538 U.S. 84 (U.S. 2003) (public notification not punitive; regulatory objective)
- Kennedy v. Mendoza-Martinez, 372 U.S. 144 (U.S. 1963) (seven factors for ex ante/punishment analysis)
- People v Gravino, 14 N.Y.3d 546 (N.Y. 2010) (SORA is civil/remedial, not penal)
- Doe v Raemisch, 895 F. Supp. 2d 897 (E.D. Wis. 2012) (state registration regime not punishment under ex post facto)