Opinion
CR-009113-18SU
11-27-2020
The PEOPLE of the State of New York v. S.L., Defendant.
HONORABLE TIMOTHY D. SINI, District Attorney of Suffolk County, Laurie Moroff, Esq., of counsel, Criminal Courts Building, Riverhead, New York 11901 DANIEL PILO, Esq., The Legal Aid Society, 300 Center Dr., Riverhead, NY 11901, Attorney for Defendant.
HONORABLE TIMOTHY D. SINI, District Attorney of Suffolk County, Laurie Moroff, Esq., of counsel, Criminal Courts Building, Riverhead, New York 11901
DANIEL PILO, Esq., The Legal Aid Society, 300 Center Dr., Riverhead, NY 11901, Attorney for Defendant.
Chris Ann Kelley, J. On December 17, 2004, in West Virginia, Defendant was convicted of Sexual Abuse in the First Degree, in violation of West Virginia Code § 61-8B-7 and was sentenced to 1-5 years incarceration. Defendant was also convicted of Malicious Assault, in violation of West Virginia Code § 61-2-10b and was sentenced to 2 to 10 years incarceration.
On March 10, 2012, Defendant was released from the West Virginia Department of Corrections and shortly thereafter moved to Suffolk County, NY.
On May 29, 2013, the Defendant was the subject of a Risk Assessment hearing based upon the West Virginia conviction, resulting in SORA registration as a Risk Level 3 Sexually Violent Offender.
According to the People, in 2018, the Defendant was arrested for threatening to kidnap and murder his social services worker and charged with Aggravated Harassment (A misdemeanor). In December of 2018, the Defendant plead guilty to Disorderly Conduct (Violation), pursuant to PL § 240.40(7), and was sentenced to a conditional discharge with an order of protection issued in favor of the social services worker, and ultimately, sealing of the conviction.
On June 1, 2020, the Defendant filed a petition for modification of his risk level from Risk Level 3 to a proposed Risk Level 1, pursuant to Correction Law § 168-o(3).
On July 29, 2020, Board Examiner Christopher Sherman of the Board of Examiners of Sex Offenders (hereafter "the Board") provided the Court with an updated recommendation pursuant to Correction Law § 168-o(4). Nowhere in the updated recommendation is any reference made to the alleged 2018 conviction for Disorderly Conduct . In his updated recommendation, Board Examiner Sherman described with particularity the documents he relied upon, the facts of the West Virginia underlying offense, the Defendant's criminal history, the Defendant's conduct while incarcerated, the results of Defendant's psychological evaluations, and the documents provided by Defendant in support of his application.
Board Examiner Sherman described the arguments presented by the Defendant's petition for reduction of his Risk Level as follows:
"Mr. [L.] is requesting a level reduction on the grounds that he has been compliant with treatment, he has shown good standing in the community , he has no other sexual offenses since the instant offense, he has not reoffended in the 8 years since being released , he has been home from incarceration for 8 years, and emphasizes that statistically the longer an individual has not offended, the less likely they are to reoffend" (Board Examiner Sherman recommendation at 3) (emphasis added).
Board Examiner Sherman described the standard by which the Board reviews such applications:
"Please be advised that pursuant to Correction Law 168-o(2) states, ‘The petition shall set forth the level of notification sought, together with reasons for seeking such determination. The offender shall bear the burden of providing facts supporting the requested modification by clear and convincing evidence.’ Moreover, the Board does not rescore the Risk Assessment Instrument (RAI) when preparing updated recommendations in response to Petitions for Modification. Rather, the Board examines what has changed in the offender's life since the risk level was established that would influence his/her risk of re-offending. Areas that are weighted the greatest include, but are not limited to, successful completion of sex offender treatment, development of relapse prevention skills, compliance with probation or parole and SORA requirements, appropriate adjustment into the community, remaining free from subsequent arrests and convictions, having positive social supports and the overall maintaining a stable lifestyle with pro-social goals and pursuits " (Board Examiner Sherman recommendation at 3) (emphasis added).
Board Examiner Sherman listed the sources of information he relied upon in developing his recommendation as follows:
"1. E-Justice Rap sheet dated July 17, 2020.
2. NYS Sex Offender Registry Offender Details for [S.L.] dated July 17, 2020.
3. Mr. [L.]'s pro se Motion for a Risk Level modification and associated Exhibits.
4. The Board's Case Summary and Recommendation completed by Board Member Dawne E. Amsler on August 21, 2012.
5. The Board's Letter and Recommendation to the Court pursuant to Correction Law 168-o(4) completed by Board Member Kathleen Murtagh on December 23, 2015 and case file.
6. Telephonic contact with the New York City Police Department (NYPD) Sex Offender Monitoring Unit (SOMU) on July 24, 2020" (Board Examiner Sherman recommendation at 1).
Board Examiner Sherman listed the criminal history and incarceration disciplinary history of which he was aware, as follows:
"Mr. [L.]'s criminal history commenced in New York with an arrest on January 6, 1999 in Suffolk County for Criminal
Mischief and Harassment in the Second Degree. All records for this matter had reportedly been destroyed. In March of 2002, he was convicted in West Virginia of Domestic Battery and was sentenced to one year in jail suspended for 2 years of probation. In June of 2002, he was convicted of Issuing a Worthless Check and was fined."
While incarcerated, Mr. [L.] participated in phases of a substance abuse program and enrolled in a more intensive substance abuse program in 2006. He completed a Sex Offender Program in January of 2006 while incarcerated. He received a disciplinary sanction for Use/Possession of Drugs/Intoxicants and was also found guilty of a violation 103.2-Rape/Sexual Acts (Threaten). This incident occurred on December 18, 2008 and involved him telling a female correctional officer that he was going to "kill her fucking whore ass," calling her a "cunt," and telling her he was going to rape her. The officer reportedly would not speak with Mr. [L.] when he asked her. He was sentenced to 60 days of punitive segregation as a result" (Board Examiner Sherman recommendation at 2).
Based on the documents he reviewed, Board Examiner Sherman concluded, in part, that "In reviewing the changes in Mr. [L.]'s life since he was released to the community in 2012, the Board recognizes that he has shown a substantial period of stability in the community. He has no new arrests or offenses and has been living in the community for the past 8 years without any supervision" (Board Examiner Sherman recommendation at 4) (emphasis added).
Board Examiner Sherman's report concluded as follows:
"Based on his several years of pro-social behavior in the community , current mental health stability, his positive social supports and the length of time that has passed since the instant offense conduct, the Board finds no compelling reason for Mr. [L.] to remain a Level 3. The Board also finds based on the evidence at hand that Mr. [L.] does not currently pose a danger to others and has demonstrated a low risk of reoffending for several years as supported by two separate clinical evaluations, his current treatment provider and his overall conduct since his release to the community .
Based on the foregoing, the Board recommends a reduction to a Level 1" (Board Examiner Sherman recommendation at 5) (emphasis added).
INSTANT MOTION
On September 24, 2020, the People filed the instant motion seeking to unseal the December 2018 disposition for Disorderly Conduct (violation) pursuant to Penal Law § 240.20(7), resulting in a sentence of conditional discharge and thereafter to provide those unsealed records to the Board for reassessment of the Defendant's risk. The prosecutor affirmed that she had a telephone conversation with Board Examiner Sherman about his review of this matter. Board Examiner Sherman told the prosecutor that he never had the New York City Police Department or Suffolk County Police Department search their records for any incident reports involving the Defendant. The prosecutor further affirmed that she "conducted such a search, which reveals numerous reports of harassment, threatening behavior and physical assaults, none of which the Board was aware of when making their recommendation" to the Court. The People argue for unsealing on the authority of Correction Law 168-l in conjunction with Correction Law 168-m. The People argue that "the legislature's intent is clear — to allow the Board access to any and all relevant records, including confidential and/or sealed records, in order to conduct a thorough review of a sex offender in any initial determination and any subsequent proceeding, such as a request for a modification" (affirmation of People ¶12).
On October 6, 2020, the Defense filed an affirmation in opposition to the instant motion, arguing that there was "no authority for this Court to unseal a District Court file for Disorderly Conduct." The Defense argues that CPL § 160.50 delineates six specific categories authorizing the unsealing of a record, and that none are present in this matter. The Defense further disagrees with the People's position that Correction Law § 168-l or Correction Law § 168-m may supersede the statutory provisions governing the unsealing of records found in CPL § 160.55.
LEGAL ANALYSIS
The instant dispute arises in the context of a petition made by the Defendant under Correction Law 168-o(2) ("Petition for Relief or Modification") to reduce his notification requirements from Risk Level 3 to Risk Level 1.
This reduction of risk level is consequential. The risk levels vastly differ on the ability of law enforcement and the public to have access to information about the sex offender and his/her criminal conduct. With regard to duration of registration , the registration requirements for a person with level 3 (high risk) never terminate, while the registration requirements for a person with level 1 (low risk) terminates after 20 years ( Correction Law § 168-h[1], § 168-h[2] ). With regard to being required to personally verify his/her address with local law enforcement , a person with level 3 risk must do so every 90 days, while a person with level 1 risk need not do so ( Correction Law § 168-h[3], Correction Law § 168-f[3] ). With regard to being required to have an updated photograph taken by law enforcement if the sex offender has changed his/her appearance, a person with level 3 risk must do so every ninety days, while a person with level 1 risk need not do so ( Correction Law § 168-f[3] ). With regard to dissemination of information about the identity of the sex offender , a level 3 offender's exact name and any aliases may be disseminated to the community while a person with level 1 risk may only have his/her name disseminated to the community ( Correction Law § 168-l[6][a], § 168-l[6][c] ). With regard to dissemination of address information about the sex offender , a person with a person with level 3 risk's exact address and address of place of employment may be disseminated to the community, while a person with level 1 risk's approximate address based on zip code may be disseminated to the community ( Correction Law § 168-l[6][a], § 168-l[6][c] ). With regard to dissemination of information on the internet homepage of the division of criminal justice services , a person with level 3 risk will have all of the above-described information contained on that website for community review, while a person with level 1 risk does not have any of the above-described information contained on the website ( Correction Law § 168-q[1] ). With regard to dissemination of information to vulnerable organizational entities , a person with level 3 risk is included in notifications to such organizations, while a person with level 1 risk is not included in such notifications ( Correction Law § 168-l[6][c] ). With regard to personally appearing before the division of criminal justice services to take an updated photograph of the sex offender, a person with level 3 risk must do so every year, while a person with level 1 risk must do so once every three years ( Correction Law § 168-b[b] ). Given the myriad real-world impacts of this proposed change of risk level and community notification, it is essential that the Board obtain the most complete and accurate information about the sex offender, as any errors or omissions may lead to drastic consequences on community notification and law enforcement resources.
The subject conviction of Disorderly Conduct in 2018 was sealed pursuant to CPL § 160.55 ("Order upon termination of criminal action by conviction for noncriminal offense; entry of waiver; administrative findings"). The Defense presented arguments regarding applicability of CPL § 160.50. However, such arguments are misplaced, as CPL § 160.50 only applies when the criminal action results in an acquittal or other "termination of criminal action in favor the accused." The People's application affirms that the Defendant was charged with a misdemeanor, and plead guilty to a violation under Penal Law § 240.30(7), with a sentence of conditional discharge. A plea bargain is not termination of a criminal proceeding in favor of the defendant (See People v. Casella , 90 Misc. 2d 442, 451, 395 N.Y.S.2d 909 [Crim. Ct., Richmond County 1977] ) ("The termination in favor of a defendant, then, cannot be merely a plea down from a misdemeanor to a violation"). In any event, the People are not relying on an exception found in CPL § 160.55 to unseal the conviction — rather they request this Court to unseal the record of conviction pursuant to Correction Law § 168-m ("Review"), which is copied below:
"Notwithstanding any other provision of law to the contrary , [ ]any state or local correctional facility, hospital or institution, district attorney, law enforcement agency, probation department, state board of parole, court or child protective agency shall forward relevant information pertaining to a sex offender to be discharged, paroled, released to post-release supervision or released to the board for review no later than one hundred twenty days prior to the release or discharge and the board shall make recommendations as provided in subdivision six of section one hundred sixty-eight-l of this article within sixty days of receipt of the information. Information may include, but may not be limited to all or a portion of the arrest file, prosecutor's file, probation or parole file, child protective file, court file, commitment file, medical file and treatment file pertaining to such person. Such person shall be permitted to submit to the board any information relevant to the review. Upon application of the sex offender or the district attorney, the court shall seal any portion of the board's file pertaining to the sex offender that contains material that is confidential under any state or federal law; provided, however, that in any subsequent proceedings in which the sex offender who is the subject of the sealed record is a party and which requires the board to provide a recommendation to the court pursuant to this article, such sealed record shall be available to the sex offender, the district attorney, the court and the attorney general where the attorney general is a party, or represents a party, in the proceeding " ( Correction Law § 168-m ) (emphasis added).
Two cases from the Court of Appeals have helped guide this Court through the relevant issues: People v. Francis , 30 N.Y.3d 737, 71 N.Y.S.3d 394, 94 N.E.3d 882 (2018), and Matter of State of NY v. John S. , 23 N.Y.3d 326, 991 N.Y.S.2d 532, 15 N.E.3d 287 (2014).
In People v. Francis , the Court of Appeals addressed the question whether a sealed youthful offender adjudication could be unsealed for review by the Board for risk assessment and, if so, under what authority. The Court identified the principal intent of the youthful offender statute was "to maximize protection against public opprobrium and the stigma of a criminal record," and enabled its beneficiaries to have "the opportunity for a fresh start, without a criminal record" ( People v. Francis , 30 N.Y.3d 737, 741, 71 N.Y.S.3d 394, 94 N.E.3d 882 [2018] ). The Court acknowledged the importance of that legislative intent and the need to respect and honor the goals of the relevant sealing statute.
The Court also highlighted the critical importance the Board gives to criminal conduct, even if the conduct occurred in a youthful offender context, and the need to have the data and information relevant to their assessment of risk:
"In fulfilling its mandate to draft Guidelines that take into account a sex offender's criminal history factors when assessing risk level, including "the number, date and nature of prior offenses" (id. § 168-l [5] [a]-[i], [b] [iii] ), the Board interpreted SORA as authorizing consideration of a YO adjudication as part of those criminal history factors. Specifically, the Guidelines provide that "[a]lthough an adjudication as a youthful offender is not a conviction," it is a "reliable indicator[ ] of wrongdoing and, therefore, should be considered in assessing an offender's likelihood of reoffense and danger to public safety" (Guidelines at 6-7 and n 6). The Guidelines further state that "the [statutory] term ‘crime’ includes criminal convictions [and] youthful offender adjudications" (Guidelines at 6). YO adjudications are therefore included as part of the "offender's prior crimes" ( People v. Francis , 30 N.Y.3d 737, 746, 71 N.Y.S.3d 394, 94 N.E.3d 882 [2018] ).
The Court concluded the goals of the sealing statute could be accommodated and respected by only unsealing the materials for the limited purposes of the risk assessment procedure under Correction Law § 168. Furthermore, the Court found the subject information sought to be unsealed was both material and relevant to the risk-assessment function of the Board. The Court held:
"The statutes do not prohibit the Board's consideration of YO adjudications for the limited public safety purpose of accurately assessing an offender's risk level. Nor does the Board's interpretation undermine the legislative policy of avoiding stigmatizing a young person with a criminal record." ( People v. Francis , 30 N.Y.3d 737, 740, 71 N.Y.S.3d 394, 94 N.E.3d 882 [2018] ).
Finally, the Court located authority for unsealing the youthful offender records in CPL § 720.35(2), and found that section:
"provides the Board with access to YO-related documents. Defendant's argument that access alone
does not authorize use ignores that the CPL does not permit access for its own sake, but in furtherance of a statutory purpose. Here, that purpose is found in SORA, which requires the Board to establish guidelines and make risk level determinations based, in part, on an offender's past actions ( People v. Francis , 30 N.Y.3d 737, 749, 71 N.Y.S.3d 394, 94 N.E.3d 882 [2018] ).
In Matter of State of NY v. John S. , the Court of Appeals addressed the question whether an indictment sealed pursuant to CPL § 160.50 could be unsealed for review by experts in an Article 10 proceeding to determine if the Respondent was a sex offender requiring civil management and, if so, under what authority.
The Court identified an important goal of the sealing statute of CPL § 160.50 was to avoid stigma resulting from a case which terminated in the Respondent's favor and is therefore a "nullity" ( Matter of State of NY v. John S. , 23 N.Y.3d 326, 342, 991 N.Y.S.2d 532, 15 N.E.3d 287 [2014] ). The Court acknowledged the importance of that legislative intent and the need to respect and honor the goals of the relevant sealing statute.
The Court also highlighted the critical importance of the sealed sex offense to the experts even though they were sealed pursuant to CPL § 160.50, and the need to have the data and information relevant to their evaluation of defendant's mental status ( Matter of State of NY v. John S. , 23 N.Y.3d 326, 335, 991 N.Y.S.2d 532, 15 N.E.3d 287 [2014] ) ("The experts also agreed that mental health professionals who evaluate article 10 respondents commonly rely on these types of records, even if the records describe sex offenses that did not result in criminal convictions").
The Court concluded that the goals of the sealing statute could be accommodated and respected because Article 10 of the Mental Hygiene Law provides for confidentiality of the records used for the limited purposes of the evaluation procedure:
"Finally, to the extent respondent is concerned that a "stigma" may result from the disclosure of his unsealed records—a concern CPL 160.60 is intended to address— Mental Hygiene Law § 10.08 (c) already provides that "confidential materials" obtained pursuant to that statute "shall not be further disseminated or otherwise used except for [article 10] purposes" ( Matter of State of NY v. John S. , 23 N.Y.3d 326, 342, 991 N.Y.S.2d 532, 15 N.E.3d 287 [2014] ) (internal citations omitted).
The Court located authority for unsealing the sealed records in the "catch-all provision" of Mental Hygiene Law § 10.08(c), consisting of the following:
"(c) Notwithstanding any other provision of law , the commissioner, the case review panel and the attorney general shall be entitled to request from any agency, office, department or other entity of the state, and such entity shall be authorized to provide upon such request, any and all records and reports relating to the respondent's commission or alleged commission of a sex offense, the institutional adjustment and any treatment received by such respondent, and any medical, clinical or other information relevant to a determination of whether the respondent is a sex offender requiring civil management. Otherwise confidential materials obtained for purposes of proceedings pursuant to this article shall not be further disseminated or otherwise used except for such purposes. Nothing in this article shall be construed to restrict any right of a respondent to obtain his or her own records pursuant to other provisions of law" ( Mental Hygiene Law § 10.08 ) (emphasis added).
On the above-quoted language "Notwithstanding any other provision of law," the Court of Appeals noted:
"The meaning of the statute's ‘notwithstanding’ clause is plainly understood and ‘clearly supersedes any inconsistent provisions of state law,’ including the sealing procedures set forth in CPL 160.50. Although CPL 160.50 was not among the statutes the legislature amended to explicitly allow the State access to records in article 10 proceedings, we believe that the legislature's inclusion of the ‘notwithstanding’ clause in Mental Hygiene Law § 10.08 (c) was deliberate and was intended to authorize disclosure of information that other statutes, like CPL 160.50, would not otherwise permit" ( Matter of State of NY v. John S. , 23 N.Y.3d 326, 341, 991 N.Y.S.2d 532, 15 N.E.3d 287 [2014] ) (internal citations omitted).
Now turning to the instant matter, this Court notes the purpose of the relevant sealing statute ( CPL § 160.55 ) is the avoidance of public stigma attendant with arrest and conviction of an offense ( People v. Nicholas , 19 Misc. 3d 322, 331, 854 N.Y.S.2d 877 [Watertown City Ct. 2008] ). The limited sealing resulting from CPL § 160.55 can be addressed by ensuring that record of conviction remains as confidential to the public during, and after the proceeding, as it was before the unsealing.
This Court concludes that the goals of the relevant sealing statute can be accommodated and respected in that Correction Law § 168-m provides for confidentiality of the records used for the limited purposes of the evaluation procedure:
"Upon application of the sex offender or the district attorney, the court shall seal any portion of the board's file pertaining to the sex offender that contains material that is confidential under any state or federal law ; provided, however, that in any subsequent proceedings in which the sex offender who is the subject of the sealed record is a party and which requires the board to provide a recommendation to the court pursuant to this article, such sealed record shall be available to the sex offender, the district attorney, the court and the attorney general where the attorney general is a party, or represents a party, in the proceeding" ( Correction Law § 168-m ) (emphasis added).
This Court recognizes the critical importance of the risk assessment process, the function of the Board, and the role of an offender's criminal history in the risk assessment process.
The legislature has counseled that the community notification risk level system for sex offenders is of "paramount" importance. In enacting this system, they included the following "legislative purpose or findings:"
"The legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and that the protection of the public from these offenders is of paramount concern or interest to government. The legislature further finds that law enforcement agencies' efforts to protect their communities, conduct investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders who live within their jurisdiction and that the lack of information shared with the public may result in the failure of the criminal justice system to identify, investigate, apprehend and prosecute sex offenders .
The system of registering sex offenders is a proper exercise of the state's police power regulating present
and ongoing conduct. Registration will provide law enforcement with additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation promptly. It will allow them to alert the public when necessary for the continued protection of the community.
Persons found to have committed a sex offense have a reduced expectation of privacy because of the public's interest in safety and in the effective operation of government . In balancing offenders due process and other rights, and the interests of public security, the legislature finds that releasing information about sex offenders to law enforcement agencies and, under certain circumstances, providing access to limited information about certain sex offenders to the general public, will further the primary government interest of protecting vulnerable populations and in some instances
the public, from potential harm" ( Correction Law § 168-h ) (emphasis added).
As shown above, the legislature formally recognized that 1) protection of the public from sex offenders is of "paramount importance," 2), to further public safety, law enforcement agencies should possess information about sex offenders in their communities, and 3) sex offenders have a reduced expectation of privacy because of the strong need for public safety.
To further the goal of protection of the public from sex offenders, the Legislature enacted the lengthy statutory structure of Correction Law § 168, including the creation of a Board. This Board of experts was mandated by the legislature to "develop guidelines and procedures to assess the risk of a repeat offense by [a] sex offender and the threat posed to the public safety." The legislature directed the Board to base the guidelines on, inter alia, "criminal history factors to be considered in determining risk, including the number, date, and nature of prior offenses" (See Correction Law § 168-l ).
The Board produced such guidelines, entitled Risk Assessment Guidelines and Commentary , presenting expert analysis of the risk factors and their relevance risk level adjudication.
The Board confirmed the legislature's attention to criminal history as an important factor in assessing likelihood of reoffense. On the issue of "Number and nature of prior crimes" (Factor 9), the Board wrote:
"An offender's prior criminal history is significantly related to his likelihood of sexual recidivism, particularly when his past includes violent crimes or sex offenses (Quinsey et al. 1995; McGrath 1991; Quinsey 1990; Romero & Williams 1985; Longo & Groth 1983; Groth, Longo & McFadin 1982). This category incorporates this research by assessing an offender 30 points if he has a prior conviction or adjudication for a Class A felony of Murder, Kidnaping, or Arson, a violent felony, a misdemeanor sex crime, or endangering the welfare of a child, or any adjudication for a sex offense; 15 points if he has a prior felony conviction or adjudication for a crime other than a Class A felony of Murder, Kidnaping, or Arson, a violent felony, or a sex offense (e.g., drug dealing); and 5 points if he has any criminal history other than a felony or sex crime. As noted previously in Factor 9, under Part II of the Guidelines (Criminal History), the fact that the offender has a prior felony sex crime conviction automatically results in a presumptive risk assessment of level 3. If an offender has a conviction for a felony sex crime, there is an override, and he is presumptively level 3 (see p. 17, infra). The term violent felony, as used in the guideline, has the same meaning as in the Penal Law (see Penal Law § 70.02 ( 1]). The Board decided to treat endangering the welfare of a child as if it were a sex crime because it generally involves sexual misconduct, especially when it is part of a plea bargained disposition. Where a review of the record indicates that there was no such misconduct, a departure may be warranted.
Notably, this category looks to an offender's prior criminal history. However, some sex offenders have concurrent or subsequent offenses not scored in this category. Although such concurrent or subsequent criminal history is not covered by this particular category, it may be the basis for an upward departure if it is indicative that the offender poses an increased risk to public safety " (Sex Offender Registration Act: Risk Assessment
Guidelines and Commentary at 13-14 [2006]) (emphasis added)
The Board also confirmed the enhanced importance of recent criminal activity on risk assessment risk of reoffense. On the issue of "Recency of Prior Felony or Sex Crime" (Factor 10), the Board wrote:
"In weighing an offender's criminal history, the nature of his prior crime is not the only important factor; the recency of those crimes matters as well. To capture this factor, the guidelines assess 10 points if an offender has a prior felony or sex crime within three years of the instant offense . This three-year period should be measured without regard to the time during which the offender was incarcerated or civilly committed. It is an offender's behavior during his time at liberty that is relevant in assessing his likelihood to reoffend. In other words, this category measures the time from when the offender is released into the community until the date he commits the instant offense" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 14 [2006] (emphasis added).
Moreover, the legislature included in its statutory risk assessment scheme that an expert from the Board must gather all relevant materials and create an assessment product tailored to each individual Defendant, resulting in a risk assessment level. It is clear to this Court that Board Examiner Sherman based his recommendation of risk level 1 (low risk), in part, on the belief that Defendant "has no new arrests or offenses ," a belief which the People assert is erroneous. (Board Examiner Sherman recommendation at 4) (emphasis added). This is emphasized by Board Examiner Sherman's statement that "Areas that are weighted the greatest include, but are not limited to, successful completion of sex offender treatment, development of relapse prevention skills, compliance with probation or parole and SORA requirements, appropriate adjustment into the community, remaining free from subsequent arrests and convictions , having positive social supports and the overall maintaining a stable lifestyle with pro-social goals and pursuits" (Board Examiner Sherman recommendation at 3) (emphasis added).
This Court finds that the subject 2018 sealed conviction is material and relevant to the functions of the Board in carrying out their duties pursuant to Correction Law § 168. Finally, this Court finds authority for unsealing the subject sealed records in the "catch-all provision" of Correction Law 168-m, consisting of the following:
"Notwithstanding any other provision of law to the contrary , any state or local correctional facility, hospital or institution, district attorney, law enforcement agency, probation department, state board of parole, court or child protective agency shall forward relevant information pertaining to a sex offender to be discharged, paroled, released to post-release supervision or released to the board for review no later than one hundred twenty days prior to the release or discharge and the board shall make recommendations as provided in subdivision six of section one hundred sixty-eight-l of this article within sixty days of receipt of the information. Information may include, but may not be limited to all or a portion of the arrest file, prosecutor's file, probation or parole file, child protective file, court file, commitment file, medical file and treatment file pertaining to such person" ( Correction Law § 168-m ) (emphasis added).
This Court finds, consistent with the Court of Appeals in Matter of State of NY v. John S. , 23 N.Y.3d 326, 341, 991 N.Y.S.2d 532, 15 N.E.3d 287 (2014), the meaning of the statute's ‘notwithstanding’ clause is plainly understood and clearly supersedes any inconsistent provisions of state law, including the sealing procedures set forth in CPL § 160.55. Although CPL § 160.55 was not among the statutes the legislature amended to explicitly allow the State access to records in Correction Law § 168 proceedings, this Court believes that the legislature's inclusion of the ‘notwithstanding’ clause in Correction Law § 168-m was deliberate and was intended to authorize disclosure of information that other statutes, like CPL § 160.55, would not otherwise permit.
Finally, this Court notes the inherent injustice that would result from denying the People's application. If the People's affirmation is accurate, and the Defendant has a 2018 conviction, the existence of which he denied in his application for reduction of his risk level, and about which the Board is unaware due to the sealing statute, the resulting risk assessment would be flawed and inaccurate. The Defendant cannot use the fact that his 2018 conviction was sealed pursuant to CPL § 160.55, to obtain a benefit based upon allegedly living a law-abiding-life. By so doing, the Defendant would be using CPL § 160.55 as both a sword (persuading the Board that he has no convictions), and a shield (preventing the Board and Court from being aware of his convictions). In the same way that "it is unfair for the opposing party in a litigated controversy to use [a] privilege both as a sword and a shield, to waive when it enures to her advantage, and wield when it does not," so too, it strikes this Court as manifestly unfair to invoke the sealing statute to prevent disclosure of an untruthful petition" ( Matter of NY City Asbestos Litig. , 109 A.D.3d 7, 13, 966 N.Y.S.2d 420 [1st Dept. 2013] ).
The People's application to unseal the records pertaining to the Defendant's 2018 conviction for Disorderly Conduct and refer them to the Board for review consistent with Correction Law § 168 is granted.
The People are directed to provide the Court with an unsealing order to effectuate this Decision and Order.
This constitutes the Decision and Order of the Court.