PEOPLE v. JOHNSON (2003)

Must a court, having repeatedly adjourned at the defendant's request a sex offender's sentencing and Sex Offender Registration Act (“SORA”) hearing, now agree to sentence the defendant, release the defendant unsupervised, and conduct the SORA hearing at a date after the defendant's release-where (1) that defendant is a prior felony sex offender who (2) has in the past been convicted of failure to register as a sexual offender, and (3) violated probation, and where in addition the defendant's counsel possessed, for a substantial time prior to the hearing, the discovery relied upon by the Board of Examiners in recommending a risk level to be assigned to the defendant?

For reasons set forth below, the court denied defendant's request and, after a hearing, classified the defendant a risk level three and a sexually violent offender.

Decision After Proceeding

Before this court is a proceeding to determine the classification and level of notification, pursuant to Correction Law § 168, to be imposed under the SORA. The defendant, Victor Johnson, was convicted of the class A misdemeanor of Sexual Abuse in the Second Degree, a violation of section 130.60(2) of the penal law.  Prior to the commencement of the hearing, the Board of Examiners (“the Board”) submitted to the court a Risk Assessment Instrument which recommended a risk level three (high), based upon the defendant's prior conviction of a felony sex abuse crime in Maryland.   This written decision supplements the oral decision previously rendered wherein the court assigned a level three risk designation and designated the defendant as a sexually violent offender.

Findings of Fact

On July 21, 2003, the defendant, represented by counsel, pled guilty to the crime of Sexual Abuse in the Second Degree.   As part of this plea, the court provided the defendant with a sentencing commitment of ten months incarceration.   Pursuant to Criminal Procedure Law Section 390.20.2(b), sentencing was adjourned until August 28, 2003 for the purpose of a pre-sentence report to be prepared by the Department of Probation.   The pre-sentence report was prepared on August 28, 2003 and was available to defense counsel, but at the request of defense counsel, sentencing was adjourned until September 15, 2003, then until September 26, 2003, again until October 10, 2003, and again until October 24, 2003.

The pre-sentence report referenced the defendant's prior conviction of a Third Degree Sexual Offense in Prince County, Maryland.   It also noted that, following that conviction the defendant failed to register as a sexual offender as required, and also violated probation.

On October 24, 2003, defense counsel again requested that sentence be adjourned and for a hearing to determine the risk level to be assigned by the court.   Sentencing as well as a hearing date was set for October 30, 2003, at which time defense counsel requested yet another adjournment of sentencing and hearing until November 5, 2003.

At the court's request, on November 3, 2003, the Board forwarded the Risk Assessment Instrument to the court.   On November 5, 2003, the court provided a copy of the Risk Assessment Instrument to both counsel.   Counsel for the defendant then requested that the court abide by its ten month commitment and sentence the defendant, but adjourn the hearing until some time after the defendant's release.   Counsel based its argument on Correction Law § 168-n2, which provides that determinations by the sentencing court shall be made “thirty days prior to release” and on Correction Law § 168-n3, which provides defense counsel with twenty days notice of the determination proceeding and a copy of the Board's recommendations.   Counsel for the defendant indicated that additional time was needed for “discovery”.

The court denied defense counsel's request.   The SORA contemplates the Board's risk level recommendation being made to the “sentencing court” within sixty days prior to the defendant's release (Correction Law § 168-l6).   That “sentencing court” is then to determine the classification within thirty days prior to discharge (Correction Law § 168-n2) and provide counsel with twenty days notice of the determination proceeding (Correction Law § 168-n3).   Here, due to the defendant's repeated adjournments of sentencing, this court would not become the “sentencing court” until November 5, 2003, the day before the defendant's ten month commitment was set to expire and the defendant would be released.   Thus, at defendant's own request, the Board and this court was unable to adhere to the time frames set forth in the Correction Law.

Nor did the court deem it warranted to adjourn the hearing until after the defendant's unsupervised release.   Here, the Board recommended a risk level three solely upon the presence of a prior felony conviction for a sexual offense in Maryland, a conviction specifically referenced in the pre-sentence report.   Defense counsel had access to the pre-sentence report since at least August 28, 2003 (over seventy five days prior to sentence), and defense counsel itself requested a hearing as early as October 24, 2003 (thirteen days prior to the actual sentencing and SORA hearing).   Since defense counsel already possessed the discovery relied upon by the Board in making its assessment, there was no legitimate need, or right, to additional discovery.   Doe v. Pataki, 3 F.Supp.2d 456.

Finally, the pre-sentence report specifically references the defendant's past failure to register as a sexual offender in connection with a prior sexual offense, as well as his violation of probation for that sex crime.   Under all these circumstances, adjourning the hearing until after the defendant's unsupervised release without his registering as a sex offender would have resulted in an unwarranted risk to the public.

The court nevertheless granted defendant one more adjournment, until November 6, 2003, to provide defense counsel with an opportunity to review a certified copy of the Maryland court's file concerning the defendant's prior conviction for a sexual offense.

Conclusions of Law

The Board's Risk Assessment Instrument recommended a level three designation on the basis of a prior Maryland conviction for a Third Degree Sexual Offense.

 At the hearing, the people submitted a certified copy of the Maryland court's file setting forth the prior sexual offense conviction.   The court also took notice of a copy of the Maryland statute reflecting that the prior conviction is a felony with a maximum jail sentence of ten years.   The court finds that the certified copy of the Maryland file concerning the defendant's prior conviction establishes by clear and convincing evidence the existence of the conviction.   Independently, the court finds that the pre-sentence report, which specifically references that prior conviction, is reliable hearsay for purposes of the hearing.  People v. Victor R., 186 Misc.2d 28, 715 N.Y.S.2d 283.   Thus, the court finds that through the Maryland conviction documents and the information contained in the pre-sentence report, the people have satisfied their burden that the defendant is a prior felony sex offender by clear and convincing evidence, and the court concurs with the Board's recommendation that a level three designation is warranted.   It has not been established by clear and convincing evidence that there exists a mitigating factor of any kind, or to a degree, not otherwise adequately taken into account by the guidelines which would constitute special circumstances warranting a downward departure from this risk level.   People v. Salaam, 174 Misc.2d 726, 666 N.Y.S.2d 881.

 The court also determines that the defendant is a sexually violent offender, as determined in Correction Law § 168-a7(b), on the basis of two independent grounds.   First, that the defendant was convicted of a prior offense (the Maryland felony) which the defendant was required to register as a sex offender.  Correction Law § 168-a3(b).  Second, that the defendant was convicted of an offense in another jurisdiction (the Maryland felony) for which includes all the essential elements of Penal Law § 130.65. Correction Law § 168-a3(b), and § 168-a3(a).

The foregoing constitutes the opinion, decision, and order of the court.

FRANCIS D. RICIGLIANO, J.