Issues Presented: Did the County Court abuse its discretion by modifying Mr. Shader’s SORA risk level from Level 3 to Level 2, but not to Level 1?

Held: No.

Discussion:

In an opinion authored by Judge Troutman, and joined by Judges Garcia, Singas, and Cannataro, the Court found no abuse of discretion where the County Court denied Mr. Shader’s request for a modification of his SORA risk level to Level 1 from Level 3 after 23 years in the community without reoffending sexually. Chief Judge Wilson dissented, issuing an opinion that was joined by Judges Rivera and Halligan.

The Sex Offender Registration Act (“SORA”), codified in Correction Law § 168, requires that persons convicted of a qualifying sex offense register as a “sex offender,” thereby allowing law enforcement and, in many cases the public, to access to their personal information, including their current residential address and place of employment. Prior to their release from custody, registrants are assigned a risk level, which is intended to reflect their risk of reoffending sexually and the harm such reoffense would cause. Subsequent to that initial risk-level determination, Correction Law § 168-o(2) allows a registrant to return to the court that assigned their risk level to seek a modification of their risk level to a lower level. Any such request must be supported by clear and convincing evidence that the registrant’s circumstances have changed in such a way as to support a downward modification. The court is the final arbiter as to whether to grant a modification after hearing from the registrant and the prosecution as well as receiving an updated recommendation from the Board of Examiners of Sex Offenders (the “Board”).

In 1998, after serving 21 years in prison for a sex offense, Mr. Shader was released to parole and adjudicated a Level 3, high risk, registrant. Prior to the conviction for which he served two decades in prison, Mr. Shader had been convicted of other sex offenses, and subsequent to his release, in 2003, he was convicted of two misdemeanors (auto stripping and possession of burglary tools). Between 2003 and 2021, when he filed a petition to lower his risk level to Level 1, Mr. Shader incurred no other convictions. In those years, he completed 10 years of one-on-one sex offender treatment, maintained steady full-time employment, met and married his wife of more than 12 years, and formed a close relationship with his stepdaughter. He was 66 years old at the time of his modification petition and an expert who examined him concluded he posed a low risk of reoffense.

After reviewing Mr. Shader’s petition, the Board provided an updated recommendation in which it indicated that it “would not oppose” a modification to Level 1. The prosecution opposed any modification of his risk level, but did not challenge or dispute any of the evidence Mr. Shader put forth as to his rehabilitation. Rather, the prosecution relied on the seriousness of his crimes and his criminal record to justify his remaining a Level 3 registrant. The County

Court granted Mr. Shader partial relief, modifying his risk level to Level 2, but not Level 1. The court found that while he was less likely to reoffend than he was in 1998, the seriousness of Mr. Shader’s prior (and subsequent) criminal history outweighed his two decades of sex offense-free time in the community such that a Level 1 was not warranted. Mr. Shader appealed, and the Third Department affirmed the County Court’s determination. The Court of Appeals granted Mr. Shader leave to appeal.

The majority held that the lower court’s consideration of Mr. Shader’s criminal history and the nature of his prior offenses (which primarily occurred in the 1970s), as well as its consideration of his (admittedly) non-violent subsequent misdemeanor convictions, was not an abuse of discretion as a matter of law. The bulk of the majority’s opinion is spent countering the arguments made by Chief Judge Wilson in his dissent. Whereas the dissenting judges found both legal error and an abuse of discretion in the court’s denial of a modification to Level 1, the majority found neither.

Unlike the dissenting judges, who advocate that only evidence that “relate[s] to the propensity to commit a sexual offense” is “relevant” and eligible to be considered at a modification hearing, the majority endorses a much broader approach, justifying its position by describing the public safety purpose of SORA registration. The dissenters do not consider Mr. Shader’s minor, non-violent, non-sexual misdemeanor convictions 18 years before his modification petition “relevant,” and chide the lower courts (and prosecution) for merely relying on the existence of those minor convictions. The majority, in justifying the consideration of the misdemeanors, focuses on a purported link between the nature of Mr. Shader’s prior offenses and his conviction for possessing “burglary tools.” While criticizing the dissenters for expecting courts to “construe the record in the light most favorable to the defendant,” the majority does the opposite, offering explanations and justifications beyond those ever asserted by the prosecution or the lower courts.

The majority also takes issues with what it perceives as the dissent’s framing of a downward modification as something to which a registrant is “entitled.” Instead, the majority concludes, it is the original risk level that is presumed to still be accurate and the registrant must present enough proof to justify changing it. The different conclusions reached by the dissent and majority as to the legislative intent motivating the modification process, in large part, motivates the outcome each considers appropriate. The majority is satisfied that the Legislature’s goals as to the registration scheme are achieved by assuming, absent compelling evidence, that an individual’s risk of reoffense is static. The dissent, however, sees the lower courts’ (and majority’s) reliance on Mr. Shader’s prior criminal history and the nature of his offenses as grounds for denying a modification as rendering true relief illusory. The dissenting judges recognize that, by the majority’s logic, there is nothing more Mr. Shader can actually do going forward to lower his risk level to Level 1 because his history will never change.

CAL Observes:

This was a tremendously disappointing decision. Rather than seeing this case as an opportunity to make true courts’ repeated promises that rehabilitation will be recognized and rewarded, the Court doubled down on its unwillingness to look beyond the kinds of misconduct it most detests. With that said, there are two (small) positives that can be drawn from the decision. First, the majority describes “appellate review of modification proceedings” as “robust,” which should finally convince certain prosecutors that they should stop with their (repeatedly unsuccessful) attempts to convince the First Department that modification hearings cannot be appealed. Second, the circumstances in this case convinced nearly half of the judges on the Court that denying complete relief was an abuse of discretion, a difficult feat. Hopefully, this is an indication that a not insignificant portion of the populace (and, perhaps, the judiciary) is beginning to recognize that everyone is capable of change, even those who are presumed to be monsters. As SORA practitioners would likely agree that modification proceedings are typically won or lost at the trial court level—even intermediate appellate courts with their independent discretion are unlikely to overturn most denials on appeal—if the trend is real and it continues, registrants may, in practice, begin to see more well-deserved relief.