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The Court of Appeals in Albany, N.Y., Thursday shot down on due process grounds a key reporting requirement of New York’s Sex Offender Registration Act (SORA), commonly referred to as Megan’s Law, as it applies retroactively to sex offenders and held that such convicts have a constitutional right to be heard before they are branded as sexually violent predators. In a unanimous opinion, the court said that procedures for determining the risk level of convicts sentenced before Megan’s Law took effect violate due process provisions in both the state and federal Constitutions. Consequently, it overturned an Appellate Term ruling and entitled the defendant to a hearing before he can be designated a violent offender. People v. David W.(Anonymous), 77, was one of two Megan’s Law decisions handed down Thursday. In the other, People v. Ian Kearns, 76, the court issued a memorandum opinion asserting that a risk level determination is not independently appealable from the underlying criminal conviction. The David W. case involves a Southampton man who is apparently the first sex offender in New York convicted for refusing to register under SORA (Correction Law Section 168). David W. was convicted in 1995 of sexually abusing two underage boys and was sentenced to concurrent 90-day jail terms based on his Supreme Court plea to first-degree sexual abuse and second-degree sodomy. He was on probation when Megan’s Law took effect on Jan. 21, 1996. Under Megan’s Law, the convict was required to register with New York as a sex offender, and was provided with the appropriate form by his probation officer. REFUSAL TO REGISTER Included with the form was notification that he had been designated a level-three risk, the highest level. Convicts rated a level three are bound by the registration requirements for 10 years and must verify their address and other information with local law enforcement every 90 days. Convicts in the lower risk categories must register annually for 10 years. On advice of counsel, David W. refused to sign the risk-level assessment or register, primarily because he objected to being characterized as a sexually violent predator. As a result, he was prosecuted and convicted of a misdemeanor for failing to register, and sentenced to a year in jail. David W. appealed, asserting equal protection and due process claims. The Appellate Term rejected all of his claims; the Court of Appeals unanimously reversed. DUE PROCESS Crucial to the court’s analysis is the fact that defendants in custody are afforded broader protections against erroneous risk assessments than those, like David W., who were convicted before Megan’s Law took effect and are on probation. Writing for the court, Judge Carmen Beauchamp Ciparick noted that offenders in custody are assigned a risk level by the sentencing judge, who makes a determination after receiving a recommendation from the Board of Examiners of Sex Offenders. Under SORA, incarcerated offenders are specifically afforded the right to be heard and the right to have counsel appointed. However, since David W. was on probation, he was not notified that his risk level was being determined and had no opportunity to be heard. That discrepancy, Ciparick wrote, violates the “bedrock of due process.” She said the Legislature’s desire to streamline procedures for probationers failed to respect constitutional safeguards. “The need for expediency cannot overshadow the fact that a critical decision was being made about defendant that determined his potential to commit further sex offenses, the extent to which he would have to register, and the extent to which his personal information and propensity for committing sex offenses could be distributed to his community,” Ciparick wrote. The court said that the review process afforded David W. — under the statute his only remedy was to petition the sentencing court — failed to provide any meaningful way for the convict to influence his risk-level assessment before that assessment was made. “Defendant may or may not deserve a risk level three classification, but without any notice and an opportunity to be heard before a determination is made, the risk-level determination made below failed to comport with minimum State and Federal constitutional requirements of due process,” Ciparick said. The court declined to decide if, as the prosecution contended, the defendant could obtain judicial review through an Article 78 proceeding commenced under the Civil Practice Law and Rules. However, it said that even if such a review were available, it would not overcome the base infirmity in the procedures. Charles M. Newell of Quogue, N.Y., argued for David W. Suffolk County Assistant District Attorney William T. Ferris appeared for the prosecution. RISK RULING INSEPARABLE In the Ian Kearns case from Brooklyn, the court viewed Megan’s Law from a different perspective — whether risk-level assessments imposed at the time of sentencing can be appealed. Unanimously, it ruled that they cannot. Kearns gave the court an opportunity to revisit an issue it decided in 1998, when it held in People v. Stevens, 91 NY2d 270, that risk levels generally cannot be appealed because they are usually assigned after the offender is released from prison. Therefore, the court said in Stevens, registration under Megan’s Law is not part of the sentence and therefore is not appealable within the criminal proceeding. Here, the court considered whether a risk level assigned contemporaneously can be appealed. “Were this court to adopt defendant’s theory and promulgate a non-enacted avenue of appeal for this case and its limited cadre of cases, such a rule would generate dual criminal and civil tracks of appeal that could produce conflicting results,” the court said. “That is not what the Legislature intended and such a result is not warranted here.” The court observed that the Legislature amended Megan’s Law to allow appeals of classification rulings made after Jan. 1, 2000, but declined to extend that privilege retroactively. Appearing were Elizabeth J. Miller of the Legal Aid Society in Manhattan for Kearns and Brooklyn Assistant District Attorney Anthea H. Bruffee for the prosecution.

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