Summary
The Appellate Division, Fourth Department modified an order determining the defendant's risk level under the Sex Offender Registration Act (SORA) from level two to level one. The court found that the prosecution failed to establish by clear and convincing evidence that the defendant engaged in a continuing course of sexual misconduct, which was necessary to assign twenty points under risk factor four. Consequently, the defendant's total risk score was reduced from eighty to sixty points, resulting in a presumptive level one classification. The court affirmed the order as modified and declined to address the defendant's remaining contentions.
Topics
Practice areas
Questions Presented
- Whether the County Court erred in assessing 20 points under risk factor four for a continuing course of sexual misconduct without clear and convincing evidence of multiple acts.
- Whether the defendant’s risk score should be reduced, resulting in a level one risk designation.
Holdings
- The County Court improperly assessed the 20 points because the People failed to establish by clear and convincing evidence that the defendant engaged in a continuing course of sexual contact.
- The defendant’s score must be reduced by 20 points, yielding a total of 60 points and a presumptive level one risk.
Key quotations
“We agree with defendant that County Court improperly assessed 20 points under risk factor four for engaging in a continuing course of sexual misconduct.” (at 1)
“Such a finding required the People to establish by clear and convincing evidence that defendant had "engaged in a continuing course of sexual contact" by either (i) two or more acts of sexual contact separated by at least 24 hours, or (ii) three or more acts over a period of at least two weeks.” (at 1)
Factual background
Defendant Brandon K. McNeal was convicted in federal court of conspiracy to commit sex trafficking of a minor. At a SORA hearing the County Court assigned him a level two risk, adding 20 points for alleged "continuing course of sexual misconduct" based on evidence that he had sexual intercourse with the victim. The evidence did not show multiple separate acts of sexual contact.
Procedural history
The Monroe County Court assessed defendant as a level two risk under the Sex Offender Registration Act based on 20 points for risk factor four. Defendant appealed the assessment.