People v. Canady

Summary

The Appellate Division, Second Department, reversed an order designating Quayshaun Canady a level three sex offender under the Sex Offender Registration Act. The court held that the People failed to establish by clear and convincing evidence the points assessed for sexual contact and a continuing course of sexual misconduct, reducing the total score and designating Canady a level two sex offender.

Holdings

1. In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing facts supporting the requested determination by clear and convincing evidence.
2. The defendant's challenge to the assessment of 20 points under risk factor 7 was unpreserved because he did not oppose the People's request for those points at the SORA hearing.
3. The Supreme Court improperly assessed 25 points under risk factor 2 because the People failed to establish by clear and convincing evidence that the defendant engaged in sexual contact with the victims or shared the victims' clients' intent to engage in sexual contact under an accessorial-liability theory.
4. The Supreme Court improperly assessed 20 points under risk factor 4 because the People failed to establish by clear and convincing evidence that the defendant engaged in a continuing course of sexual misconduct.
5. After subtracting 45 improperly assessed points from the 135-point total, the defendant's score fell within the range for a level two sex offender, requiring designation as a level two offender.

Questions Presented

1. Whether the Supreme Court properly assessed 25 points under SORA risk factor 2 for sexual contact with a victim.
2. Whether the Supreme Court properly assessed 20 points under SORA risk factor 4 for a continuing course of sexual misconduct.
3. Whether the defendant preserved his challenge to the assessment of 20 points under risk factor 7 for establishing a relationship for the purpose of victimization.
4. Whether the defendant's corrected point total required designation as a level two rather than level three sex offender.

Disposition

reversed