People v. Dennis J. Sincerbeaux
AD4 order dated October 3, 2014, affirming level 3 SORA adjudication. Decision below: 121 AD3d 1577, 993 NYS2d 855. Court of Appeals granted leave February 17, 2015.
ISSUES PRESENTED: (1) Whether points were improperly assessed under risk factor 9 because the defendant’s conviction for endangering the welfare of a child was nonsexual in nature. (2) Sufficiency of evidence to support imposition of points under risk factors 1 and 5.
Issue before the Court: Was it appropriate for the SORA court to assess 30 points under risk factor 9 of the Risk Assessment Instrument [“RAI”], based on the defendant’s prior misdemeanor conviction for endangering the welfare of a child, even though that prior crime did not involve any allegations of sexual misconduct?
Held: Yes. The Board of Examiners of Sex Offenders has established that offenders are scored 30 points under risk factor 9 if they have a prior conviction for endangering the welfare of a child. In contrast, other non-sex prior misdemeanor convictions generally requires assessment of only five points under risk factor 9. The Guidelines state that “the Board decided to treat endangering the welfare of a child as if it were a sex crime because it generally involves sexual misconduct, especially when it is part of a plea bargained disposition. Where a review of the record indicates that there was no such misconduct, a departure may be warranted.”
The Court of Appeals held that assessing 30 points, therefore, was mandatory. However, the SORA court had the discretion to downwardly depart based on the non-sexual nature of the prior crime. In Sincerbeaux, the SORA court’s refusal to depart downward was not error as a matter of law [“abuse of discretion”] because the record in Sincerbeaux showed other aggravating factors that weighed against a downward departure. The complainant in the most recent case – the conviction that was the subject of the SORA hearing – had “experienced years of physical abuse as a result of her attempts to refuse defendant’s sexual advances.”
In People v. Knox, 12 N.Y.3d 60 (2009), the Court of Appeals held that due process was not violated by including kidnaping in the list of crimes that require SORA registration – even if there is no proof that the kidnaping involved any sexual act or sexual motive. The Court found the SORA registration requirement to be “rationally related to legitimate government interests” because the Legislature reasonably determined that in a large number of cases where people kidnap or unlawfully imprison other people’s children, the children either are sexually assaulted or are in danger of sexual assault.
Both this case and People v. Howard present variations on the Knox theme. In each case, the Court noted that defendants failed to preserve their constitutional challenges to using non-sex crimes for assessing points [Sincerbeaux] or for invoking an override to a presumptive level three [Howard]. It would appear that the constitutional issue is ripe for a leave grant. While Judge Rivera dissented in both cases, leave can only be granted upon motion to the full court because SORA appeals are treated as civil appeals. It remains to be seen if the full Court wants to reach the additional constitutional claims that arise in these cases.