DECISION AND ORDER Pursuant Article 6-c of the New York State Correction Law, the Sex Offender Registration Act (“SORA”), by the Order and Decision of this Court, dated April 10, 2014, the defendant was designated a level two sex offender. On October 27, 2023, pursuant to Correction Law §168-o, the defendant filed a petition seeking a downward modification of his risk level to level one. Upon submission of the instant application, this Court considered the petition and affirmation of counsel for the defendant, the supplemental letters of defense counsel dated February 5, 2024, March 18, 2025 [sic] and April 5, 2024, respectively, the affirmation in opposition filed by the People, the testimony of the defendant (as read by counsel for the defendant at the hearing), the updated recommendation report of the Board of Examiners of Sex Offenders (“the Board”), and the oral arguments of defense counsel and the People, the Court makes the following findings of fact and conclusions of law. FINDINGS OF FACT The defendant pled guilty to Sexual Misconduct, Penal Law §130.20(1) on October 22, 2009. The accusatory instrument filed in the instant matter alleged that the defendant, who was nineteen years old at the time of such offense, engaged in sexual intercourse with a thirteen-year-old complainant on one occasion on May 15, 2008 and on four separate occasions between May 15, 2008 and July 15, 2008. As the transcript of the plea indicates, there was no allegation of force. The transcript further indicates that the Court hesitated to accept the plea, however, reconsidered after a bench conferenced with the then assigned prosecutor and defense counsel. On December 16, 2009, the promised sentence of six months’ imprisonment, SORA registration and an order of protection was imposed. After sentencing, the defendant was released into the custody of the United States Immigration and Customs Enforcement (“ICE”) and released, approximately, in the summer of 2013. By letter dated July 30, 2013, the Board notified the Richmond County District Attorney’s Office that pursuant to Sex Offender Registration Act (“SORA”), the Board was required to assess the defendant’s risk level and forwarded their recommendation. The case was then restored to the calendar, and the parties and the defendant were notified of the proceedings. The Board’s initial recommendation noted that the Pre-Sentence Investigation (PSI) Report indicated that the defendant minimized his offense by stating that the sexual intercourse was consensual, that the complainant informed him that she was seventeen years old at the time of the offense, and they only engaged in intercourse on one occasion. Citing to, among other things, the defendant’s juvenile delinquency history, which this Court recounts below, the Board initially assessed the defendant a Level Three designation. On April 10, 2014, after a hearing was held, the Court assessed the defendant 90 points, and the defendant was designated by this Court to be a level two sex offender within the meaning of Correction Law §168-d upon the application of the guidelines set forth in subdivision five of Correction Law §168-l. On October 27, 2023, the defendant filed and served the instant petition with attached exhibits, including a letter from the defendant expressing remorse for his crime and letters of support from Jon Brandt and Toney Mayer, a director and staffer from the Mapletree Group Home, where the defendant had received counseling and sex offender treatment as a youth, the defendant’s partner and mother of his child, the defendant’s union representative and an attorney in Richmond County who knows the defendant through the county’s Liberian community. The Court adjourned for the People to respond and for the Board to submit an updated recommendation. Upon receipt of the defendant’s instant petition, this Court requested that the Board provide it with an updated recommendation, pursuant to Correction Law §168-o(4). By letter dated December 27, 2023, the Board provided the Court with an updated report through which the Board found that the defendant had otherwise presented clear and convincing evidence warranting a downward modification. However, it could not recommend a downward modification because the Board could not confirm that the defendant had submitted his most recent annual verification form and had a stable residence. The defendant further supplemented his petition via letters and accompanying exhibits from his counsel, dated February 5, 2024, March 18, 2025 [sic] and April 5, 2024, respectively, which addressed questions or concerns raised by his petition. On March 14, 2024, the People served and filed an affirmation in opposition to the defendant’s application. The Court further held a hearing on the defendant’s petition on March 26, 2024. In support of his application, the defendant puts forth that it has been fifteen years since the underlying offense and, without any supervision, he has remained in the communication without any new convictions. In contrast to his earlier statements, the defendant accepts full responsibility his actions, expressing remorse and shame for the harm he has caused. The defendant further states that, in contrast to his life at the time of the offense, the defendant has a structure in place that diminishes the risk of re-offending. Prior to his offense, at the age of eleven, the defendant immigrated to the United State from Liberia after spending years in refugee camps. Once in the United States, the defendant met his biological father for the first time, however, his mother had abandoned him. After struggling to adjust to life in New York, the defendant’s father sent him to live with an aunt in Minnesota. In Minnesota, the defendant was adjudicated a juvenile offender for, inter alia, Criminal Sexual Conduct in the Fourth Degree and was required to complete inpatient sex offender treatment. The defendant accepts guilt of his actions and has expressed remorse for it. The defendant was first sent to Anoka County Juvenile Center’s Sex Specific inpatient program, before transferring to Mapletree, a court-approved group home. Here, he continued to receive sex offender treatment and other support, including group therapy, one-on-one therapy, educational support, employment support, substance abuse support, independent living skills training, social awareness skills training. While the defendant successfully completed the program, he was expelled from the residence following an altercation with a fellow Mapletree resident, for which the defendant has also expressed remorse. However, the defendant continues to have a positive relationship with the program staff and regularly checks in with them. Following the defendant’s release from custody in Minnesota in 2006, he came back to New York. However, he continued to struggle to maintain a relationship with his father, and he remained estranged from his mother. On December 10, 2008, the defendant was arrested for the underlying offense, where it was alleged he had sexual intercourse with a thirteen year old girl on four occasions earlier that year. Unlike his earlier sentence, the defendant expressed remorse and accepted full responsibility for his actions, both in writing and in his statement to the Court at the hearing. Following the defendant’s release from Rikers Island, he was transferred to ICE custody until the summer of 2013. As mentioned above, following the defendant’s release from ICE custody, most of which was spent in Louisiana, the defendant was designated a level two sex offender. The defendant has stated that, since his release and designation, there have been numerous changes in his life. He states that since the offense over fifteen years ago, he has been a law-abiding citizen in the community without any court-ordered supervision. He is now a thirty-five-year-old man with a full-time job, which he has maintained for eight years, and has been in a committed relationship with the same woman for the last ten years and with whom he shares a child. She provided a letter on his behalf wherein she expresses that the defendant is a hardworking, family-oriented man and dedicated father who has expressed remorse for his actions. The defendant’s father and union representative also provided letters of support on his behalf. Overall, the defendant has put forth that the circumstances of his life that led to the underlying offense, namely an immigrant struggling to adapt to a new life without a stable family, have been replaced with a strong family, steady employment and direction in life. Furthermore, although the Board could not confirm his compliance with his residency and verification requirements, the defendant has put forth evidence that he indeed has residential stability and is SORA compliant. The People have not opposed or attempted to controvert the defendant’s assertions regarding his SORA compliance. Based upon these assertions, the defendant argues that he presents a lowered risk of recidivism. The defendant has further requested that the Court run the defendant’s SORA registration nunc pro tunc to the actual date of release from Department of Corrections custody, rather than the date of his actual designation. The People oppose the defendant’s application, arguing that the defendant’s history prior to his conviction here supports maintaining him a level two Sex Offender. The People highlight that following the defendant’s juvenile adjudication, he received sexual offender treatment, however, such treatment did not prevent the defendant from re-offending as an adult, demonstrating a risk of recidivism. The People further argue that the defendant has not engaged in any additional sex offender treatment or therapy since his treatment as a youth. Accordingly, the defendant’s history and failure to complete any additional treatment demonstrate that he poses a risk of recidivism. The People also oppose the defendant’s request to run the defendant’s SORA registration nunc pro tunc to the date of his release from the custody of the Department of Corrections. CONCLUSIONS OF LAW First, the Court will address the defendant’s application seeking modification of his designated risk level from a level two to a level one. Pursuant to Correction Law §168-o(2), a sex offender is permitted to petition annually for modification of his or her risk level classification. See also People v. Lashway, 25 NY3d 478, 483 2015; People v. Springs, 162 AD3d 917, 918 (2d Dept 2015). Once the court receives the defendant’s petition, it must forward it to the Board and request an updated recommendation. Correction Law §168-o(4). In contrast to a sex offender seeking a downward departure at an initial risk level determination proceeding, who bears a burden of proof by a preponderance of the evidence (People v. Gillotti, 23 NY3d 841, 860-861 [2014]; People v. Wyatt, 89 A.D.3d 112, 127-128 [2d Dept 2011]), a sex offender petitioning for a downward modification “bear[s] the burden of proving the facts supporting the requested modification by clear and convincing evidence.” Correction Law 168-o(2); see also Lashway, 25 NY3d at 483; Wyatt, 89 AD3d at 125. The defendant’s petition for modification is not an opportunity to review or rescore the defendant’s initial designation. See People v. Davis, 179 AD3d 183, 187 (2d Dept 2019. “Rather, the relevant inquiry is whether conditions have changed subsequent to the initial risk level determination warranting a modification thereof.’” Id. (quoting People v. Anthony, 171 AD3d 1412, 1413 [3d Dept 2019]). “Upon receipt of a petition [for a downward modification], the court shall forward a copy of the petition to the [B]oard and request an updated recommendation pertaining to the sex offender and shall provide a copy of the petition to the other party.” Correction Law §168-o(4). Once the Court makes such a request, “the [B]oard shall provide an updated report pertaining to the sex offender petitioning for relief of the duty to register or for a modification of his or her level of notification.” Correction Law §168-l(7). The court shall then forward the Board’s report to the parties. Correction Law §168-o(4). “After reviewing the recommendation received from the board and any relevant materials and evidence submitted by the sex offender and the district attorney, the court may grant or deny the petition.” Id. The court shall render a decision setting forth its findings of fact and conclusions of law (id.), and its determination will not be disturbed absent an abuse of discretion (Davis, 179 AD3d at 192). As our Appellate Division has noted, “SORA and its Guidelines recognize that sex offenders can improve themselves to the point that they no longer pose a high or even moderate threat of reoffending. Further, our application of SORA and its Guidelines holds the promise of the recognition of rehabilitation so as to incentivize a sex offender to achieve that which this defendant has achieved.” Id. To this end, the court shall also employ an “individualized approach…to properly and fairly evaluate applications…seeking modifications in the classification of a sex offender’s designated risk level.” Id. at 187-188. Through the defendant’s petition, affirmation, accompanying documentary material submitted, as well as supplemental letters to the Court and presentation at the SORA hearing, clear and convincing evidence was presented that defendant pled guilty to a single count of Sexual Misconduct for engaging in sexual intercourse with a thirteen-year-old girl. At the time of the offense, the defendant was nineteen years old and had no prior criminal convictions, however for the purposes of this proceeding, the defendant had a prior juvenile adjudication for Criminal Sexual Conduct in the Fourth Degree wherein the defendant completed sex offender treatment. The defendant’s sentence for the underlying Sexual Misconduct conviction was six months’ jail. The Court also notes that, in addition to his age at the time of the offense, the defendant was convicted of a misdemeanor, which was an offer extended by the People and accepted by this Court with some hesitancy, and the record is clear he was not charged with forcible compulsion, causing physical injury or the use of a dangerous instrument. After serving such sentence, the defendant was released into the custody of ICE where he remained in custody until approximately the summer of 2013. After the defendant’s release from ICE custody, the proceedings wherein the defendant was adjudicated a level two sex offender were initiated. In support of his petition for a downward modification, the defendant alleges, among other things, that his offense occurred approximately fifteen years ago, that since his release from custody he has expressed remorse and accepted full responsibility for his acts, he has led a law-abiding life in the community without any supervision, has been compliant with his sex offender registration requirements, and has remained gainfully employed including maintaining the same employment for the last eight years. The defendant further highlights that the major change in his life since his offense is the supportive family he now maintains. In addition to now maintaining a relationship with his father and working towards a healthy relationship with his mother, the defendant is now in a long-term relationship with the same partner with whom he raises a daughter. As opposed to when he offended and could not find strong familial support as a nineteen-year-old, he now finds himself a thirty-five-year-old man with a strong support system, which provides him with a desire to live a life of which he will be proud for both himself and his family. Further, in contrast to the young man who minimized his actions in his initial sentencing report, the defendant now accepts full responsibility and expresses remorse for his actions. While the defendant has not completed any additional treatment since his release in 2013, the defendant relies on the therapy and treatment he received as part of his juvenile sentencing. The defendant further maintains contact with the staff at that facility, who have offered letters in support of his modification. The defendant further contends that given the years since his offense, especially without any re-offense, the defendant risk of recidivism is reduced. The defendant argues that he has done all that has been asked of him by the court and the prosecution, and his risk of recidivism is so reduced by the marked changes in his life that it warrants reduction to a level one sex offender. After reviewing the submissions from both parties and the Board, as well as the records put forth at the hearing, this Court finds that the defendant has established, by clear and convincing evidence, facts warranting a downward modification of his existing risk level classification to a risk level one. The defendant’s submissions demonstrated that, through his strong family support, law abiding lifestyle, continuous employment, adjustment to life in New York and the several years since his last conviction, his risk of reoffending is so diminished that a reduction from his current risk level two to risk level one is appropriate. See Davis, 179 AD3d at 189-190. Furthermore, similar to Davis, “Neither the Board nor the prosecution submitted any contradictory evidence to overcome the defendant’s substantial showing.” Id. at 189. In sum, the Court further finds that the defendant’s demonstrated law-abiding lifestyle, compliance with SORA, committed relationship with a partner who is aware of his criminal history, his caring relationship with his daughter and consistent employment present a compelling change in circumstances indicative of a diminished risk of repeat offense, as well as a diminished threat to the public safety. Accordingly, based upon the foregoing findings of fact and conclusions of law because the defendant has presented clear and convincing evidence warranting a reduction of his risk level and that he is indeed compliant with SORA, his petition is granted. See People v. Clark, 207 AD3d 758 (2d Dept) (holding that despite defendant’s violent felony conviction since his sex offense and never participated in sex offender treatment, defendant’s strong family support, including that he has been in a committed relationship with a partner for more than 20 years with whom he has two children, and lack of subsequent sex offense convictions, the Court properly modified the defendant’s designation as a level two sex offender). Second, the defendant further requests that this Court run the defendant’s SORA registration nunc pro tunc to the date of his actual release from Department of Corrections’ custody. The People oppose such application. It is well settled that SORA is regulatory rather than criminal in nature and is not intended to serve as a form of punishment. See People v. Mingo, 12 NY3d 563, 571-572 (2009). The goals of SORA are “to protect the public from the danger of recidivism posed by sex offenders, to assist the criminal justice system to identify, investigate, apprehend and prosecute sex offenders, and to comply with the Federal Crime Control Act.” People v. Stevens, 91 NY2d 270, 275 (1998) (internal quotation marks and external citations omitted). Accordingly, “[T]he due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial.” Doe v. Pataki, 3 F Supp 2d 456, 470 (SDNY 1998) (citation omitted); see also People v. Parris, 153 AD3d 68, 77 (2d Dept 2017); People v. Wells, 138 AD3d 947, 951 (2d Dept 2016); People v. Gutierrez-Lucero, 103 AD3d 89, 98 (2d Dept 2012). In this regard, while SORA requires that the Board make a risk level classification recommendation to the sentencing court and that the court, in turn, render a risk level determination within a specified time prior to the sex offender’s discharge or release (see Correction Law §§168-l[6]; 168-n[2]), the Legislature has directed that the failure to do so within the time periods specified “shall not…prevent a court from making a determination regarding the sex offender’s level of notification and whether such offender is required by law to be registered” (Correction Law §168-l[8]). Accordingly, a defendant’s due process rights are violated only when such delay is “so outrageously arbitrary as to constitute gross abuse of governmental authority.” People v. Meyers, 16 Misc 3d 115, 118 (App Term, 2d Dept, 9th & 10th Jud Dists 2007); see also People v. Scattaregia, 150 AD3d 1033, 1034 (2d Dept 2017); People v. Collier, 223 AD3d 539, 540 (1st Dept 2024); People v. Gallagher, 129 AD3d 1252, 1253 (3d Dept 2015); People v. Wilkes, 53 AD3d 1073, 1074 (4th Dept 2008). Here, the defendant was only sentenced to a term of imprisonment of six months in 2009, however, the defendant appears to have been in ICE custody thereafter until the summer of 2013, at which time the proceedings were commenced. Thus, under the circumstances of this case, especially given the defendant was in federal custody in a different state for much of this time, this Court does not find there is a basis upon which to conclude that any delay in commencing the SORA proceedings or in conducting the hearing was so outrageously arbitrary as to constitute a gross abuse of governmental authority. See People v. Gonzalez, 138 AD3d 814, 815 (2d Dept 2016) (approximate 14-year delay in assessing the defendant a level two sex offender was not so outrageously arbitrary as to constitute a gross abuse of governmental authority); Gallagher, 129 AD3d at 1253 (more than 11-year delay in rendering risk level determination did not violate the defendant’s right to due process); People v. Martin, 119 A.D.3d 1385 (4th Dept 2014) (nearly 6-year delay); Wilkes, 53 AD3d at 1074 (nine-year delay). Moreover, upon the allegations presented, it cannot be said that the defendant was not actually afforded due process as there is no record he was not provided with notice of the proceedings, an opportunity to present witnesses or evidence on his behalf, right to counsel, discovery or a right to appeal. Meyers, 16 Misc 3d at 117-118. Therefore, while the timing of the proceedings was not in conformity with the express requirements of SORA, the delay was neither arbitrary nor outrageous as to constitute a gross abuse of governmental authority and deprive the defendant of due process. Id. at 118; see also Collier, 223 AD3d at 540-542 (the record lacked any indication that the defendant was actually prejudiced by the delay, such as the loss of access to a relevant witness or that he was otherwise impaired in presenting his case at the SORA hearing). Accordingly, the defendant’s request to run the defendant’s SORA registration nunc pro tunc to the date of his actual release from Department of Corrections’ custody is denied. CONCLUSION Based upon the foregoing findings of fact and conclusions of law, the defendant’s petition seeking the modification of the defendant’s designated risk level from a level two to a level one, pursuant to Correction Law §168-o(2) is granted; however, the defendant’s application to run the defendant’s SORA registration nunc pro tunc to the date of his actual release from Department of Corrections’ custody is denied. The foregoing constitutes the order and decision of the court. Dated: May 16, 2024
