Issue before the Court: Whether a defendant’s prior youthful offender [“YO”]  adjudication may be considered in determining his or her risk-level designation under the Sex Offender Registration Act [“SORA”].

 

Held: Yes. The Court held that the Criminal Procedure Law specifically provides that [Department of Corrections and Community Supervision] employees, “of which the Board [of Examiners of Sex Offenders] is composed,” may have access to YO records. 30 N.Y.3d 737, 742 (2018). Moreover, while a YO adjudication is not a “conviction,” it is an “offense,” and the Legislature also directed that the Board “take into consideration a sex offender’s criminal history factors when assessing risk level, including ‘the number, date and nature of prior offenses.’” 30 N.Y.3d at 746, quoting Correction Law § 168-l.

 

CAL Observes: To be clear, New York State, unlike other jurisdictions, does not require Youthful Offenders to register as sex offenders. This case involves someone who committed the sex offense as an adult [though only age 19] but he had a prior Youthful Offender adjudication for possession of stolen property. For that prior felony conviction, he was scored 25 points under factors 9 and 10 of the Board’s risk assessment instrument - which made the difference between a high and medium risk level.

 

Despite affirming, the Court did acknowledge both prior case law and “copious scientific data supporting the argument that young people who commit crimes are unlikely to reoffend.” 30 N.Y.3d at 750.  However, with regard to the defendant’s argument that “science in fact disproves the Board’s conclusion that youthful acts are indicative of a risk to reoffense, and, as a matter of law, the [Board’s] Guidelines violate SORA,” the Court held that the defendant “failed to develop a record reviewable by the SORA court with an opportunity for the Board to respond. Thus, that claim is not properly before us.”  The Court appears to have left a door open.

 

A similar claim regarding a youth’s risk of reoffense may be resolved next term in People v. DelaCruz, 161 A.D.3d 519 (1st Dept. 2018), where the First Department rejected the defendant’s  argument that due process bars requiring a 16-year-old convicted as an adult to register for life (with a Level 3 high risk SORA adjudication). The Court stated: “Although defendant and amici raise substantial arguments, they have not established that any aspect of either the applicable statute or the risk assessment instrument is unconstitutional.”  The defendant has appealed “as of right” to the Court of Appeals, under CPLR § 5601.