People v. Quanaparker Howard


AD4 order dated February 6, 2015, affirming level 3 SORA risk- level designation. Decision below: 125 AD3d 1331, 999 NYS2d 783. Court of Appeals granted leave May 12, 2015. To be argued March 30, 2016.
ISSUE PRESENTED: SORA-Whether the county court erred in declining to depart from the serious physical injury override’s presumptive level-3 risk designation.

Issue before the Court: Whether the SORA court erred in declining to depart from the serious physical injury override’s presumptive level-3 risk designation, where the offense was unlawful imprisonment and the serious physical injury had no sexual component.


Held: No. The inflicting of serious physical injury required the SORA court to invoke the override and made the defendant a presumptive level 3. The Court of Appeals held that the non-sexual nature of the offense could be a basis for a downward departure from that presumptive level 3. The override makes the defendant a “presumptive” level 3 but level 3 is not mandatory. The Court stressed that, “There is nothing in the record to suggest that the hearing court felt it did not possess the discretion to depart from the presumptive level three.” The SORA court found that the torture inflicted, while not sexual in nature, posed a serious risk to public safety that is not captured by the scoring instrument [“RAI”]. See People v. Gillotti, 23 N.Y.3d 841 (2014) (articulating standard for downward departure).


CAL Observes:

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. Sincerbeaux 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.