People v. RossPeople v. Ross
OPINION OF THE COURT
The nature of the hearing required under New York State’s Sex Offender Registration Act (
the sex offender statute
Article 6-C of the Correction Law (§§ 168 — 168-v [L 1995, ch 192]) was adopted on July 25, 1995 and became effective on
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 (
New York’s statute establishes a Board of Examiners of Sex Offenders (
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 (
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
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” (op. cit., 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.AD2d 831 [3d Dept 1994]; People ex rel. Scherz v Dennison,
PROCEDURAL HISTORY
In this case, Ross was indicted for rape in the first degree. On July 23, 1993, he pleaded guilty to attempted rape in the first degree. He was sentenced to an agreed term of incarceration of l1/2 years to 41/2 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 advised him that the matter would appear in court on April 30, 1996. On April 30, 1996, Mr. Ross appeared and stated that he contested the recommendation. In accordance with
On May 14, 1996, the District Attorney’s Office appeared on behalf of the Board of Sex Offenders to defend the recommendation. Mr. Ross’ counsel sought an adjournment to evaluate the facts and determine whether he would challenge the statute and/or whether he would challenge the Board’s assessment. The court adjourned the matter to June 18, 1996 and on June 18, 1996 the hearing was adjourned on consent to July 2, 1996.
On July 2, 1996, the court heard argument from both counsel on the statute. Mr. Ross has not put forth any evidence to
Notes
. Every State has adopted sex-offender registration statutes. (Ala Code § 13A-11-200 [1994]; Alaska Stat §§ 12.63.010, 18.65.087 [1994]; Ariz Rev Stat Annot §§ 13-3821, 41-1750 [B] [1995]; Ark Code Annot § 12-12-901 [Michie 1994] ;
Of these, the following States provide, in their statutes, some form of community notification: Alaska, Arizona, California, Connecticut, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Montana, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Virginia, and Washington.
. Copies of the legislative history have been placed in the court file so it is accessible to members of the Bench and Bar.