Court of Appeals February Session: Arguments of Interest for February 15, 2017

The Court of Appeals’ February Session concludes on Wednesday, February 15, 2017 with three arguments on the docket (the Court’s case summaries can be found here).  The Court will face the following issues today: (1) whether a sex offender may be assessed points in the Sex Offender Registration Act assessment for victimization of a stranger or a person with whom the offender established or promoted a relation for the primary purpose of the victimization where the offender had a “family-like” relationship with the victims because of a longstanding relationship with the victims’ parents; (2) whether the trial court erroneously declined to charge the jury in a first degree assault case on a justification defense because the court held, as a matter of law, that any justification had abated by the time of the assault; and (3) whether a first aggressor instruction as properly given to the jury in a murder case where the defendant shot the victim at close range in close proximity to when the victim swung a mop handle at the defendant.

No. 30 & No. 31     People v William Cook

It is rare to find a Sex Offender Registration Act case before the Court of Appeals.  The Court receives numerous applications for leave to appeal in SORA cases each year, and most are simple disagreements with the assessment of points by the courts below.  Under SORA, prior to the release of a sex offender from prison, the offender is assessed a point total based on certain enumerated factors that assess the likelihood of recidivism and the intensity of post-release supervision that should be applied.  Based on the total points assessed, the offender is classified as a level one (lowest risk level), two, or three (highest risk to reoffend).

In Cook, the Board of Examiners of Sex Offenders prepared a case summary and risk assessment for Cook, which was based upon his pleas to multiple sex offenses against four children in Queens and Richmond Counties.  The Board declined to assess any points to Cook under risk factor 7, which applies when the offender victimized a stranger or a person with whom the offender established or promoted a relation for the primary purpose of the victimization.  At the SORA hearing before Supreme Court, Richmond County, however, the Court assessed Cook 20 points under factor 7, and designated him a level three offender, because although he had a “family-like” relationship with the victims being a close friend with their parents, he had groomed the victims for the abuse by playing with them, buying them gifts, and taking them places.  Supreme Court, Queens County also designated Cook a level three sex offender, over his objection that the SORA proceeding was barred by res judicata.

The Appellate Division, Second Department affirmed the Richmond County order, holding that the 20 point assessment under factor 7 was proper because Cook took advantage of his close relationship with the victims to groom them for abuse.  The Court, however, reversed the Queens County order because the SORA statute permits only one SORA “disposition” per “Current Offense” or group of “Current Offenses.”  Thus, the Court held, the Queens County disposition was barred by res judicata.

On cross appeals to the Court of Appeals, Cook argues he should not have been assessed any points under risk factor 7 because his crimes were no different than when an uncle abuses a niece, for which the SORA Guidelines do not assess any points.  The Queens DA contends that SORA requires the “sentencing court” in each case to determine each offender’s risk level, and that requirement cannot be obfuscated by a SORA determination by a different sentencing court.

The Appellate Division, Second Department’s order can be found here.

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