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Megan's Law is Amended to Comply with Doe v. Pataki –
A Review of the New Statutory SchemeBy Al O'Connor The Sex Offender
Registration / Community Notification Act (Megan's Law) [ Correction Law § 168], commonly regarded as one of the most poorly drafted bills ever to have passed the Legislature, has been amended to plug the many procedural and substantive gaps strewn
throughout the defective legislation enacted in 1995. Signed into law by Governor Pataki
on September 2, 1999 (Chap. 453
), the extensive amendments, which become effective on January 1, 2000, represent a mixed bag of changes that will benefit both the prosecution and defense. But the
predominant and salutary purpose of the amendments is to bring New York's Megan's Law into compliance with the federal court litigation in Doe v. Pataki, 940 F. Supp. 603 (S.D.N.Y. 1996), rev'd in part 120 F.3d 1263
(2d Cir. 1997), on remand 3 F. Supp.2d 456 (S.D.N.Y. 1998), which, since 1996, has largely enjoined enforcement of the Act's community notification provisions. Chapter 453
now gives sex offenders a clear, unambiguous right to assigned counsel at risk classification proceedings, as well as the right to meaningful discovery before the risk assessment hearing. It also offers sex offenders the right to a civil appeal from the trial court's risk level determination, and the right to be represented by assigned counsel on such appeals. In fact, a sex offender's right to the assistance of appointed counsel will now extend beyond the direct appeal, and apply to post-judgment motions for downward modification of the risk level score, which sex offenders may now periodically seek on grounds of changed circumstances.
It should be stressed that the amendments are not retroactive. Therefore, sex offenders who already have been classified in constitutionally defective administrative and court proceedings
must await further developments in the Legislature, or in the Doe v. Pataki
litigation itself. In the meantime, the State will continue to be enjoined from proceeding with community notification against sex offenders who were in prison, or on probation or parole, on the original effective date of Megan's Law (January 21, 1996).
Right to Court-Appointed Counsel At risk classification hearings, the original legislation guaranteed sex offenders the awkwardly phrased right "to have counsel appointed,
if necessary." [ Correction Law Section 168-n (3)]. Since 1996, a handful of judges have seized upon this semantic ambiguity and refused to assign counsel to indigent sex offenders, reasoning that defense counsel is
not "necessary" to safeguard the defendant's interests. The statute has now been amended to make clear that offenders who are "financially unable to retain counsel" have a right to counsel at risk classification
hearings. In fact, courts must automatically assign lawyers to sex offenders who were previously represented by assigned counsel in their underlying criminal cases [Correction Law § 168-n (3)]. Those who were initially
represented by retained counsel, but have since become indigent, may apply for assigned counsel in advance of the risk classification hearing. The 1995 legislation also failed to include a funding mechanism for assigned
counsel. Chapter 453
now directs that all assignments be made pursuant to Article 18-B of the County Law
, which, of course, includes representation by a legal aid bureau or society, a public defender or 18-B attorney.
Board of Examiners of Sex Offenders Risk Level Recommendation The 1995 legislation authorized the Board of Examiners of Sex Offenders to collect information about offenders from "any state or
local correctional facility, hospital or institution" as part of its review and recommendation process. The Board has now been additionally authorized to collect information from district attorneys, law enforcement
agencies, probation departments, the Division of Parole, courts and child protective agencies. This additional information may include the "arrest file, prosecutor's file, probation or parole file, child protective file
[and] court file." Since sex offenders now have broad discovery rights under the Act, any information considered by the Board will later be available to the defense at the risk classification hearing. Upon application
of either party at the conclusion of the hearing, the court must seal "any portion of the Board's file . . . which contains material that is confidential under any federal or state law." But the sealed record will be
available for review by the defense and prosecution in subsequent proceedings whenever the Board is required to provide the court with an updated recommendation [Correction Law § 168-m].
Time and Manner of Risk Assessment Hearing The Act requires the Board to issue its recommendation at least sixty days prior to a sex offender's scheduled release from prison, and the court
must render a decision within thirty days of the release date [
Correction Law Sections 168-l (6), 168-n (2)]. These short time-frames have proven difficult to meet, especially when the defendant's production in court from
state prison has been delayed for any reason. Although these deadlines have been retained in the Act, an amendment now requires courts to adjourn the hearing until after the offender's release date whenever necessary
for proper adjudication of the issues:
Where a court is unable to make a determination prior to the date scheduled for a sex offender's [release], it shall adjourn the hearing until after the offender is discharged . . . and shall then
expeditiously complete the hearing and issue its determination [Correction Law § 168-n (3)].
For defendants sentenced to probation, including "split sentences," as well as other non-incarcerative dispositions, the Act now clearly directs the sentencing court to conduct the risk
classification process without referring the defendant's case to the Board of Examiners of Sex Offenders for a recommendation. In these cases, the district attorney must provide the court and the defense with a written
statement detailing the level of notification and duration of registration sought by the state, as well as a statement of reasons in support thereof [Correction Law § 168-d]. In every other respect, the hearing
will be governed by the procedural rules of post-incarceration risk assessment hearings (see below).
Risk Level Assessment Hearing Foremost among the 1995
omissions was the Legislature's failure to adopt procedural rules for risk classification hearings, an oversight so puzzling it caused many district attorneys to question whether prosecutors were intended to be parties
to the proceedings. Under the amended statute, the role of the prosecutor as the state's representative is clearly defined. After both sides have received copies of the Board of Examiners of Sex Offenders' preliminary
risk level recommendation and any statement of reasons in support of the recommendation, a hearing must be held at which the "district attorney, or his or her designee
. . . shall bear the burden of proving the facts supporting the duration of registration and level of notification sought [by the state] by clear and convincing evidence." If the district attorney wishes to pursue a different risk level determination than the one recommended by the Board, he or she must provide notice and a statement of reasons in support of the alternative determination at least ten days before the hearing, and must satisfy the same clear and convincing evidence standard of proof.
When the parties disagree about the appropriate risk level determination, the court must
adjourn the hearing to allow for discovery. Relevant discovery material will now be available – voluntarily or by subpoena duces tecum - from the Board of Examiners of Sex Offenders and "any state or local facility, hospital, institution, office, agency, department or division." When making its determination, the court must consider relevant materials and evidence, including reliable hearsay evidence, submitted by the parties, as well as the recommendation and any materials submitted by the Board. The court must also review a victim impact statement when one is available. Facts that "were previously proven at trial or elicited [as part of a guilty plea] shall be deemed established . . . and shall not be relitigated" at the hearing. The court must issue an order fixing the sex offender's risk level determination and duration of required registration, and set forth its findings of fact and conclusions of law [Correction Law § 168-n (3), 168-d (3)].
Appeals and Post-Judgment Petitions Addressing its major oversight on appellate review [see People v. Stevens, 91 N.Y.2d 270 (1998)], the Legislature has now granted sex offenders the right to a civil
appeal from the trial court's risk level determination (CPLR Articles 55, 56 and 57). For good measure, the Legislature has also given the People a right to appeal these determinations. When counsel has been assigned to represent a sex offender at the trial
court level, the assignment will continue through the direct appeal [Correction Law § 168-n (3), 168-d (3)].The right to assigned counsel has also been extended to post-judgment
petitions for downward modification of the risk level assessment and/or the duration of the defendant's required registration as a sex offender. These downward modification applications may be brought by sex offenders
as often as once-a-year, but the court will not be required to assign counsel to draft a petition because the right to counsel for indigent petitioners will not formally attach until after a petition has been filed. Sex
offenders who have been registered for at least ten years may petition the court to be relieved of any further duty to register. The People have also been granted limited authority to
move for upward modification of a sex offender's risk level score and/or duration of registration. These prosecution-initiated petitions may be brought when a sex offender a) has been convicted of a new crime, or has
violated probation, parole, post-release supervision, or the terms of a conditional discharge, based upon the commission of a new crime, and b) the nature of the new criminal conduct "indicates an increased risk of a
repeat sex offense." Indigent sex offenders will have the right to assigned counsel whenever the People petition for upward modification. Upon receipt of a petition by either party, the
court must request an updated recommendation from the Board of Examiners of Sex Offenders. For upward modification petitions, the Board must notify the sex offender and his counsel at least thirty days before issuing a
recommendation, and must give the defense an opportunity to submit relevant information in opposition. The court must forward copies of the Board's updated recommendation to the parties at least thirty days before the
scheduled hearing. For both upward and downward modification petitions, the moving party will bear the burden of proving facts in support of the requested modification by clear and convincing evidence. The court must
issue an order setting forth its determination, as well as its findings of fact and conclusions of law. These modification rulings may then result in a new round of appeals, as detailed below:
a) Defense Appeals
i) A sex offender has a right to appeal, and to assignment of counsel on appeal, from an order granting a prosecution-initiated petition for upward modification; ii) Although a sex offender does
not have a right to civilly appeal from the denial of a petition for downward modification, the statute does not preclude the possibility of an appeal by permission in these circumstances [See CPLR § 5701(c)].
b) Prosecution Appeals
i) The People have a right to appeal from an order granting a sex offender's petition for downward modification; ii) The People also have a right to appeal from the denial of a
petition for upward modification of the risk level score or the duration of required registration.
An indigent sex offender will have a right to assigned counsel on both types of prosecution-initiated appeals [Correction Law § 168-0].
Substantive Amendments Definition of "sexually violent predator"From the defense standpoint, the most significant substantive amendment is the
Legislature's redefinition of a Level 3 "sexually violent predator." Under the 1995 Act, a "sexually violent predator" was defined as "a person who has been convicted of a sexually violent offense . . . or
a sex offender who suffers from a mental abnormality that makes such person likely to engage in predatory sexual conduct" [ Correction Law § 168-a (7)
(former)]. This definition seemed to permit an interpretation whereby all defendants convicted of the more serious "sexually violent offenses"
1
would be subject to classification as Level 3 "sexually violent predators" without regard to an individualized risk assessment review. The Board of Examiners of Sex Offenders acknowledged this possible interpretation of the statutory language, but rejected it, concluding that a "careful reading of the statute . . . supports the conclusion that the guidelines should eschew
per se rules and that risk should be assessed on the basis of a review of all pertinent factors."2 Despite the Board's opinion, some judges have interpreted the Act as requiring a
Level 3 designation whenever a defendant was convicted of a "sexually violent offense." 3
The statute has now been amended to codify the Board's interpretation, but the new definition also eliminates a limitation that applied to defendants convicted of less serious "sex offenses." Previously, such offenders could not have been classified under Level 3 unless they were found to be suffering from a "mental abnormality that makes [them] likely to engage in predatory sexual conduct." The amended definition eliminates this restriction:
Thus, while defendants convicted of more serious crimes are now guaranteed an individualized review of their perceived risk of re-offending, there is no longer any meaningful distinction
between "sex offenses" and "sexually violent offenses" under the Act. All sex offenders, even those convicted of misdemeanor offenses, now face the possibility of a Level 3 "sexually violent predator" designation by
application of the guidelines alone. New criminal offenses covered by Megan's Law Three felony sex crimes that have been enacted since 1995 have been added to the
list of "sexually violent offenses" under the Act: aggravated sexual abuse in the third degree (
Penal Law § 130.66) and course of sexual conduct against a child in the first and second degrees (Penal Law Sections 130.75, 130.80). Crimes
relating to promoting or patronizing underage prostitution have also been added to the list of "sex offenses" covered by Megan's Law.4
At the same time, parental kidnapping offenses have been removed from the list of sex offenses defined in the statute. Megan's Law has also been amended to correct a minor drafting error in the original legislation which would have excused lower level offenders sentenced to a conditional or unconditional discharge from having to register as sex offenders.
Out-of-State Convictions Defendants with out-of-state sex offense convictions who relocate to New York now have a right to a court hearing and judicial determination of the
appropriate risk level score. Previously, out-of-state sex offenders subject to Megan's Law were classified administratively by the Division of Parole or the Department of Probation and Correctional Alternatives. The
rules for such hearings closely track the procedure for in-state convictions, including an initial recommendation by the Board of Examiners of Sex Offenders, followed by a court hearing in the offender's new county of
residence. The right to court-appointed counsel and to appeal will also apply in these cases. The category of out-of-state convictions subject to Megan's Law, which was previously limited to crimes for which there is a
New York felony sex offense counterpart, has been expanded to include any felony conviction which would require the defendant to register as a sex offender under the laws of the foreign jurisdiction
[Correction Law § 168-k]. Endnotes 1. Under the original legislation, these crimes included rape in the first degree, sodomy in the first degree, aggravated sexual
abuse in the first and second degrees, sexual abuse in the first degree, or attempts to commit these crimes. 2. "Sex Offender Registration Act – Risk Assessment Guidelines
and Commentary," January 1996 at p. 2. 3. See, e.g. Judge Bellacosa's opinion in People v. Stevens, 91 N.Y.2d 270, 277 (1998).4. Penal Law § 230.04
(Patronizing a prostitute in the third degree) (Class A misdemeanor); Penal Law § 230.05
(Patronizing a prostitute in the second degree) (Class E felony); Penal Law § 230.06 (Patronizing a prostitute in the first degree) (Class D felony); Penal Law § 230.30 (2)
(Promoting prostitution in the second degree) (Class C felony); Penal Law § 230.32 (2)
(Promoting prostitution in the first degree) (Class B felony), or attempts to commit any of these offenses. Note that for patronizing an underage prostitute, Chapter 453 requires that the person patronized
in fact be less than 17. Therefore, in undercover police operation situations, Megan's Law will not apply, even though the defendant may be criminally liable for an attempt. See People v. Coleman
, 74 N.Y.2d 381 (1989). |
