People v Milks, __ AD3d __ [available here]
In New York, all sex offenders are classified on a scale of "1" to "3", with "3" being reserved for those offenders most likely to reoffend (and thus subject to the most onerous post-release reporting requirements). The appropriate classification is determine using a point assessment system. When a sex offender is released from prison, a hearing is held and certain points are assessed for different categories. If force was used in the commission of the sex crime, a certain number of points are added; if there were multiple victims, some more points are tacked on, and so on.
One of the point categories used to classify sex offenders is based on an offender's "prior . . . criminal history" not involving sex crimes or felonies; if an offender has a prior criminal history, five extra points are added to the assessment. Since sex offenders are not classified until they get out of prison on the underlying sex offense, there can be quite a lag between the commission of the underlying sex crime and the SORA classification hearing. Plus, all sex offenders in New York were recently reclassified as a result of the lawsuit in Doe v Pataki, and some of those offenders had been out of prison for years before being reclassified for SORA. So the question for purposes of assessing points for "prior . . . criminal history" was, "prior" to what? Prior to the conviction for the underlying sex crime, or prior to the SORA classification hearing?
The Fourth Department answered that question in People v Milks, and held that the category for "prior . . . criminal history" means "prior" to the underlying sex conviction. From the decision:
With respect to risk factor nine, the SORA Risk Assessment Guidelines and Commentary (Nov. 1997) provides that a sex offender's 'concurrent or subsequent criminal history is not covered by this category, [although] it may be the basis for an upward departure if it provides reason to believe that the offender poses an increased risk to public safety'. Here, defendant was convicted of the underlying sex crime in 1991 and released from prison in 1997, but the 'criminal history' considered by the court under risk factor nine concerned acts committed in 1999 and a conviction entered in 2000. The record thus does not contain the requisite clear and convincing evidence supporting the assessment of five points under risk factor nine [...].
(Milks, __ AD3d at __.)
This issue came up a lot during the SORA reclassification hearings pursuant to Doe v Pataki, so it is nice to see the Fourth Department clarifying the issue.