Blog - Sexual Offenders Registry:
By Laura Monagle.
Conviction for a sex offense can have life long ramifications for defendants
who will be required to register as sex offenders. The following post
will explain the process of registration as a sex offender. If you are
facing charges which could result in you being determined to be a sex
offender, you should contact an experienced attorney to take on your case.
Conviction for one of the following offenses of the New York Penal Law
('NYPL')(or conviction for an attempt to commit one of the following
offenses) will result in the defendant being required to register as a
- Luring a child (NYPL 120.70).
- Sexual misconduct (NYPL 130.20).
- Rape (NYPL 130.25-35 - first, second and third degree).
- Criminal sexual act (NYPL 130.40-50 - first, second and third degree).
- Sodomy (NYPL 130.40-50 - first, second and third degree).
- Forcible touching (NYPL 130.52) (not the first offense but on the second
- Persistent sexual abuse (NYPL 130.53).
- Sexual abuse (NYPL 130.55-65 - first, second and third degree) (not the
first offense but on the second conviction).
- Aggravated sexual abuse (NYPL 130.65-a-70 - first, second, third and fourth degree).
- Course of sexual conduct against a child (NYPL 130.75-80 - first, and second degree).
- Facilitating a sex offense with a controlled substance (NYPL 130.90).
- Predatory sexual assault (NYPL 130.95).
- Predatory sexual assault against a child (NYPL 130.96).
- Unlawful imprisonment (NYPL 135.05-10 - first and second degree).
- Kidnapping (NYPL 135.20-25 - first and second degree).
- Patronizing a prostitute (NYPL 230.05-06 - first and second degree.
- Promoting prostitution (NYPL 230.30-32 - first and second degree).
- Compelling prostitution (NYPL 230.33).
- Sex trafficking (NYPL 230.34).
- Disseminating indecent material to minors (NYPL 235.22).
- Unlawful surveillance (NYPL 250.45-50 - first and second degree).
- Incest (NYPL 255.25-27 - first, second and third degree).
- Use of a child in a sexual performance (NYPL 263.05).
- Promoting an obscene sexual performance by a child (NYPL 263.10).
- Possessing an obscene sexual performance by a child (NYPL 263.11).
- Promoting a sexual performance by a child (NYPL 263.15).
- Possessing a sexual performance by a child (NYPL 263.16).
- Facilitating a sexual performance by a child with a controlled substance
or alcohol (NYPL 263.30).
(Note: for some of these offenses, a conviction does not require registration
but may result in registration).
Risk Assessment Instrument:
When an individual is convicted of an offense which requires registration
as a sex offender, as assessment must be undertaken to determine the level
of 'risk' the offender presents to the community. There are three
levels of registration - level one (the lowest), level two and level three
(the highest). As per the Sex Offender Registration Act ('SORA')
Risk Assessment Guidelines and Commentary, there are two considerations
which must be taken into account in determining the threat a sex offender
poses to the community - one: the likelihood that the offender will reoffend,
and - two: the harm that would result if the offender were to reoffend.
The Board of Examiners of Sex Offenders ('Board') came up with
an objective instrument, used to determine the level of risk posed by
an offender. This instrument is split into four sections:
- Current offenses:
- Use of violence.
- Sexual contact with the victim.
- Number of victims.
- Duration of offence conduct with the victim.
- Age of the victim.
- Other victim characteristics.
- Relationship between the offender and the victim.
- Criminal history.
- Age at the time of committing first sex crime.
- Number and nature of prior crimes.
- Recency of prior felony/sex crime.
- Drug or alcohol abuse.
- Post-offense behaviour.
- Acceptance of responsibility.
- Conduct while confined/under supervision.
- Release environment.
- Living/employment situation.
Points are tallied in each section - the higher total that an offender
scores, the more risk they present to the community. An offender will
be registered as a level one risk if they score 70 points or less. An
offender will be registered as a level two risk if they score less than
110 but more than 70 points. An offender will be registered as a level
three risk if they score more than 110 points. To see the points that
are awarded in these different categories, click here for a sample scoresheet
(Risk Assessment Instrument).
An offender will be presumed to be a level three offender if any of the
following four 'overrides' apply to the offender - one: prior
convictions for sex felonies - two: offending causing physical injury
or death to the victim - three: the offender has made a recent threat
of re-offense - four: the offender has been clinically assessed to have
a psychological, physical or organic abnormality that reduces their ability
to control their sexual impulses (for example: paedophilia or sexual sadism).
Each of these circumstances provides strong evidence that an offender
is a danger to the community. The fact that these overrides are presumptive
means that the Board or the presiding court can choose to depart from
it them, should the situation warrant this. It should be noted that this
is a rare occurrence. (On a separate note, those individuals found to
have such abnormalities are at risk for civil commitment after the expiration
of their incarceration).
In order for points to be tallied against an offender in the process of
calculating the level of risk, the Board or presiding court must have
"clear and convincing evidence of the existence of that factor".
This evidence can be derived from any number of reliable sources, from
the offender to the victim to any supervising officers who have observed
the offender. The fact of an arrest should not be taken as clear and convincing
evidence that the relevant offense was committed.
The level of risk into which an offender is categorized will determine
their obligation under SORA, as well as the amount of information which
the public is entitled to know about that individual.
The New York State Division of Criminal Justice Services ('CJS')
publicizes on its website (http://www.criminaljustice.ny.gov/SomsSUBDirectory/search_index.jsp) information pertaining to level two and three sex offenders through out
the State. This includes a physical description of the offender (including
the presence of any scars or tattoos, as well as nicknames/aliases), a
listed address, the charges for which they were convicted, a description
of the offense and relevant modus operandi, and the sentence the offender
received. Information about level 1 offenders is not permitted to be made public.
Individuals convicted of one of the enumerated crimes above (or an attempt
to commit one of these crimes) must register as a sex offender as per
SORA § 168-f - (1) any sex offender shall - (a) at least ten calendar
days prior to discharge, parole, release to post-release supervision or
release from any state or local correctional facility, hospital or institution
where he or she was confined or committed, or - (b) at the time sentence
is imposed for any sex offender released on probation or discharged upon
payment of a fine, conditional discharge or unconditional discharge, register
with the division on a form prepared by the division. Failure to register
as a sex offender when required to do so constitutes an E felony, and
any offender charged with this offense faces four years imprisonment.
Offenders are registered as either a level one, two or three risk level.
Offenders are also designated as a sexual predatory, sexually violent
offender, predicate sex offender, or 'no designation'. Offenders
who are registered as level one, and 'no designation', are to
be registered annually for a period of twenty years. Offenders who are
any designation other than 'no designation', and who are either
a level two or three risk, are registered for life. Under § 168-h(2),
offenders who are registered as level two risk and 'no designation'
may be able to petition for relief after twenty years of registration
(discussed further below).
Offenders who are registered as a level three risk or are designated sexual
predator status must personally verify their address with law enforcement
every 90 days.
Section 168-f sets out the extensive verification duties on the registered
sex offender. This includes the duty to verify home and employment addresses,
changes to internet account belonging to the offender, and to update their
photograph (how often this must occur), as well as how often each of these
must occur (this depends on risk level).
Petition to Remove Status:
There is some scope for an offender to petition for relief of duty to register,
or modification of their risk level. This process is set out in §
168-o, and has been somewhat controversial because of changes made to
the minimum period of continuous registration before such a petition can
be made. The recent decision of
Nolan v. Cuomo WL168674 (EDNY, 2013) affirmed the earlier decision in
Woe v. Spitzer 571 F.Supp.2d 382 (EDNY, 2008). Each of these decisions attempted to interpret
§ 168-o sub-sections (1) and (2). Sub-section (1) allows for level
2 sex offenders to petition for relief from their duty to register, however,
this petition can only be made after 30 years of continuous registration.
There is no allowance for level 1 sex offenders to make the same application
under this sub-section. However, sub-section (2) allows for any sex offender
to petition for modification of their risk level. This has been interpreted
as allowing level 1 sex offenders to petition for modification to a risk
level below level 1 (and therefore, effectively relieving level 1 offenders
of the duty to register). The onus is on the sex offender to present evidence
that suggests they should be relieved of their status; this is a high
It should be noted that if an appeal for relief under § 168-o(1) is
successful, the District Attorney ('DA') is granted an appeal
as of right.
State versus Federal requirements:
The Federal government passed the Sex Offender Registration and Notification
Act ('SORNA') in 2006, in order to set minimum standards for all
of the states to follow regarding registration of sex offenders. This
Act requires that sex offenders (even if convicted of a Federal sex offence)
must register with the state in which they reside. SORNA also enumerates
the minimum amount of information which states must gather about their
sex offenders, although not all of this information can be made public.
If you or a loved one have been arrested for a sex offense or are considering
moving for an adjustment of your registration level, you should seriously
consider contacting the experienced
criminal defense attorneys at Galluzzo & Arnone LLP. Matthew Galluzzo, in particular, is a former Manhattan sex crimes prosecutor
who has successfully represented numerous individuals accused of sex offenses.