Appeals Court Clarifies Conflict between SORA and FCA over Sex Offenders

06/14/12

On Wednesday, the Appellate Division, Second Department, New York clarified an important conflict over the application of laws regarding sex-offenders. The conflict was between the Family Court Act and the New York Sex Offender Registration Act as to the level of supervision to be applied to a sex offender.

The SORA laid down that a court can use the defendant's age at the time of his first sex offense for declaring the chances of a defendant of becoming a repeat offender and determine the level of supervision.

However, under section 381.2 of the Family Court Act, juvenile delinquency adjudications cannot be admitted as evidence in any court proceeding other than for sentencing the defendant pursuant to his conviction as an adult.

The conflict arose in that SORA counted sexual offenses done as a juvenile to determine the level of supervision that should be imposed on an adult sex-offender. The appeals court ruled on Wednesday that the acts of a juvenile cannot be used to increase the levels of supervision under SORA.

In the instant case, Joe Campbell, the defendant, was 13-years old when he committed his first sexual misconduct. His offense was that he kept watch outside a park while three older individuals attacked a woman. Had he been an adult, it would have been attempted rape, but the case was disposed by juvenile delinquency adjudication. This was in 1984.

After the passing of 25 years from that date, in 2009, Campbell pleaded guilty to sexual abuse in the first degree. He was designated a level 3 offender and subjected to the most stringent supervision after prosecutors presented evidence of earlier convictions including that of the juvenile delinquency adjudication. The Second Department found that while the SORA guidelines allow use of that information, taking it into account for deciding the level of supervision contradicts the protection of juvenile defendants granted by the Family Court Act.

In the unanimous opinion, Associate Justice John Leventhal wrote, “If the mere fact that an individual was adjudicated a juvenile delinquent is to be considered in assessing points against an offender pursuant to SORA, such consideration must be specifically authorized by the legislature, not by the courts or the (SORA) board.”

The consequence of the ruling would alleviate Campbell's condition from being treated as a highest-level offender to level 1, or the lowest-level.

Campbell's lawyer, Arthur Hopkirk, told the media, “We're pleased that the Second Department agreed with our position that juvenile delinquency adjudications should not be used in determining risk level in SORA cases with respect to people's criminal history.”

The case is People v. Campbell, in the Supreme Court of the State of New York, Appellate Division: Second Department, No 2009-4630.