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May 7, 1998

JOHN DOE, RICHARD ROE, and SAMUEL POE, individually and on behalf of all other persons similarly situated, Plaintiffs, against HON. GEORGE E. PATAKI, in his official capacity as Governor of the State of New York, et al., Defendants.

The opinion of the court was delivered by: CHIN



 In this case, plaintiffs continue their challenge to the constitutionality of the New York State Sex Offender Registration Act, N.Y. Correction Law §§ 168 to 168-v (McKinney Supp. 1996) (the "Act"), as applied to individuals who committed their crimes before the Act took effect. Their ex post facto claim having been rejected by the Second Circuit, plaintiffs now press their due process claims, contending that the Act, on its face and as applied, deprives them of their right to due process of law under the Fourteenth Amendment.

 Two groups of individuals seek relief. First, the named plaintiffs represent the class of those convicted sex offenders who were on probation or parole on January 21, 1996, the date the Act took effect, and who were administratively given risk level classifications (the "Probationer-Parolee class"). Second, plaintiffs seek to add an additional class of plaintiffs, comprised of individuals who were still incarcerated on January 21, 1996, but who have been or will be released from custody and assigned risk level classifications at judicial hearings pursuant to § 168-n of the Act (the "Proposed Additional class").

 Before the Court are (i) the parties' cross-motions for summary judgment with respect to the claims of the Probationer-Parolee class, (ii) plaintiffs' motion for leave to amend the complaint to add claims on behalf of the Proposed Additional class, and (iii) plaintiffs' motion for a preliminary injunction in favor of the Proposed Additional class.

 For the reasons set forth more fully below, plaintiffs' motions are granted and defendants' cross-motion for summary judgment is denied, for I hold that plaintiffs are entitled to due process in the classification proceedings under the Act and that plaintiffs have not been afforded the minimal due process protection required by the Constitution.

 The case of proposed plaintiff Charles Coe illustrates vividly the deficiencies in the process of assigning risk levels under the Act. Coe pled guilty in 1990 to attempted sexual abuse for kissing a neighbor and touching her breasts while riding in an elevator. At his sentencing in December 1990, the court noted that Coe suffered from borderline mental retardation. In December 1996, Coe received a notice advising him that the court was required to make a "final determination" of his risk level under the Act. The notice did not advise Coe of his proposed classification or the ramifications thereof. Although he had been found indigent and was represented by Legal Aid in the earlier criminal proceedings, no lawyer was notified to appear at the classification hearing on his behalf. (Hendricks Decl. PP 11-12 & Ex. B).

 At the classification hearing, the court read from a document, provided by the Board of Examiners of Sex Offenders (the "Board"), that incorrectly described the case as one that involved, not kissing and grabbing someone on an elevator, but sexual contact with a 15-year-old girl, including pulling her pants down and lying on top of her. The report stated, incorrectly, that Coe had been charged with rape. The court noted that the Board had recommended that Coe be classified at risk level two, and ruled that it was going to "adhere" to the Board's recommendation. (Hendricks Decl. PP 13-14 & Ex. C at 2; compare Hendricks Decl. Ex. B).

 Coe, who appeared without a lawyer, attempted to tell the court that "the description of the crime . . . [was] totally different from what originally happened." (Hendricks Decl. Ex. C at 3). The court responded as follows:

The Board has given me a summary of what happened, and the Board -- based upon what they have recommended that you receive, risk level two, I don't agree with it wholly, but the law is there and I must carry it out as long as I sit on the bench. . . .

 (Id. at 4). The court refused to change its classification of Coe as a risk level two. The court did not inform Coe that he had a right to a lawyer. The court did advise Coe to contact a lawyer and apparently gave him the name and telephone number of Legal Aid, but the court did not do so until after it had classified Coe as a risk level two. (Id. at 4-7).

 Coe did contact Legal Aid at that point, and a timely notice of appeal was filed on his behalf. The Appellate Division, First Department, however, dismissed the appeal sua sponte, holding that "no avenue exists to appeal a judicial determination of a sex offender's risk assessment under [the Act]." 660 N.Y.S.2d 714, 714 (1st Dep't 1997). Although the court stated that "we recognize that the lack of provision for appellate review may raise constitutional questions as to this portion of the statute," the court held that "that issue is not before us." Id. Coe then sought review from the New York State Court of Appeals, but his application for leave to appeal was denied. 669 N.Y.S.2d 256 (Ct. App. 1998).

 Hence, Coe was assigned risk level two, a classification that subjects him to community notification, on the basis of an incorrect report that recited facts from the wrong case. Moreover, the "hearing" could not have lasted much more than five minutes, and Coe, who apparently was indigent and borderline mentally retarded, was not provided with counsel or prior notice of the Board's recommendation or disclosure of the evidence relied on by the Board. Although the court noted that it did not "wholly" agree with the Board, it concluded that it was required to adhere to the Board's recommendation. Despite these serious problems in the proceedings, Coe was not permitted to appeal.

 The case of Samuel Poe provides another example. Poe was convicted of attempted sodomy in 1989. On March 26, 1997, he was produced from prison for a classification hearing. The transcript of the hearing -- which is reproduced here in its entirety -- speaks for itself:

THE CLERK: Bring out [Mr. Samuel Poe].
THE COURT: Let's see what they say about him.
(Whereupon, the defendant was escorted into the courtroom.)
THE CLERK: People versus [Samuel Poe].
THE COURT: Mr. [Poe], you're basically here for me to make a risk offender assessment in the case.
They've assessed you a total of a hundred and twenty points. Is there anything about that that you contest?
THE DEFENDANT: Yes. I don't even know what a hundred and twenty points means.
THE COURT: Okay. That means you're risk level three.
THE DEFENDANT: First of all, I didn't do the crime.
THE COURT: That's a separate matter.
THE DEFENDANT: Okay. Second of all, for twenty-five years I went from house to house. I'm a plumber. I went from house to house, to house to house. Never had a complaint of any kind. I can't see how I can be a risk of any kind.
THE COURT: Okay. Is that what you wanted to tell me about it?
THE DEFENDANT: I don't know what else to tell you. I haven't talked to anyone. I haven't been able to hear anyone.
THE COURT: I'll just confirm this risk level three that they said after a hearing, after hearing from you. I appreciate it.
THE CLERK: Hold on a second. This is for him. Bring out Mr. Rahman.
THE COURT: Have a good day.

 (Hendricks Reply Decl. Ex. A at 2-3). The entire proceeding could not have lasted more than two minutes. Although the assignment of risk level three subjected Poe to the highest level of community notification, he was not represented by counsel; he was not advised that he had a right to counsel; he apparently did not understand what the 120 points meant; he was not advised how the 120 points were calculated; and he was given no meaningful opportunity to challenge his classification. The court undertook no independent review of the Board's risk level recommendation, nor was Poe even provided with a copy of the risk assessment instrument or the case summary.

 These two cases provide stark examples of the lack of process provided under the Act. A system that permits a convicted sex offender to be classified at a risk level that subjects him to community notification on the basis of a perfunctory proceeding or incorrect information, that fails to provide a full and fair opportunity to be heard or legal representation, that places the burden on him to prove that the Board's findings were wrong without disclosing to him the bases for those findings, and that offers no avenue for appellate review even in the face of gross error does not pass constitutional muster.

 Accordingly, injunctive relief will be granted in favor of plaintiffs, permanently as to members of the Probationer-Parolee class and preliminarily as to members of the Proposed Additional class. Defendants may proceed with the implementation of the Act, but they may not classify members of the Probationer-Parolee class or the Proposed Additional class higher than a risk level one unless these individuals are first given new hearings that comport with the requirements of due process as set forth below.


 A. Background

 The substantive provisions of the Act and much of the factual background are set forth in detail in my prior opinions, see Doe v. Pataki, 919 F. Supp. 691 (S.D.N.Y. 1996), and Doe v. Pataki, 940 F. Supp. 603 (S.D.N.Y. 1996), as well as in the Second Circuit's opinion affirming in part and reversing in part. See Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997). The discussions of the Act's provisions and the facts contained in those opinions are incorporated herein. I now summarize the key provisions and facts relevant to the due process claims now before the Court.

 1. The Act

 a. The Risk Levels

 Pursuant to § 168-l of the Act, the five-person Board was created and charged with the task of developing a series of guidelines and procedures to be used in assessing the risk of repeat offense by a sex offender and in determining an offender's risk level. See § 168-l(5). The risk assessment guidelines, developed with the assistance of a group of experts with experience in dealing with sex offenders, call for the drafting of a risk assessment instrument for each convicted sex offender subject to the Act, which contains a series of factors relating to the offender's current offense, his criminal history, his post-offense behavior, and his release environment.

 The Act establishes three levels of risk to which an offender may be assigned, depending on the danger the offender poses to the community: level one (low risk), level two (moderate risk), and level three (high risk). See § 168-l(6). Whether a convicted sex offender is to be classified at risk level one, two, or three is determined by consideration of approximately 15 factors, weighted and totalled to arrive at a score that purports to indicate his likelihood to commit a repeat offense.

 b. Incarcerated Sex Offenders

 For convicted sex offenders in state custody, the Department of Correctional Services ("DOCS") notifies the Board when an individual who is subject to the Act is about to be released from prison or jail. The Board then assesses the offender's risk and forwards a risk level recommendation to the sentencing court within 60 days prior to the offender's release from custody. See § 168-l(6). A board member is assigned to perform the initial review of the offender's file, which includes, among other things, the pre-sentence investigation prepared for the current offense, pre-sentence investigations for prior felony offenses, the sentencing court's commitment papers, papers generated by the offender, including legal papers generated by the offender and information concerning the offender's disciplinary history. The initial reviewer also receives the offender's criminal history from the Division of Criminal Justice Services ("DCJS") as well as quarterly reviews of the offender prepared by the offender's corrections counselor.

 If certain aspects of the offender's case are unclear or more information is necessary, the Board member is required to make the necessary contacts to gather the pertinent information. Thus, the Board member performing the initial review may obtain information concerning the offender from a variety of sources, including the prosecuting District Attorney's office, the courts, probation and parole departments and officers, DOCS computerized databases, and even the offender himself, in the form of his statements at the time of the arrest, at the time of the pre-sentence investigation, and while serving his time in the DOCS system. The offender is also entitled to submit any relevant information for the Board's consideration. After a review of the offender's file and all other available information, the Board member completes the risk assessment instrument by assigning points for each relevant factor contained in the guidelines, drafts a case summary, and makes a risk level recommendation.

 After the initial review, the file is assigned to a second reviewer, who conducts an independent review of the offender's case. The initial assessment is reviewed for accuracy and agreement with the recommended risk level. If the second reviewer agrees with the recommended risk level, he or she initials the file, and the file is then assigned to a third reviewer. Again, if the third reviewer agrees with the recommendation, he or she initials the file. Three of the five Board members must agree on a risk level recommendation before it is forwarded to the sentencing court. If the three Board members assigned to a particular case cannot agree, a fourth Board member examines the file.

 The risk level recommendation and case summary are then forwarded to the sentencing court for a final risk level determination. The offender's file itself, containing the information upon which the recommendation is based, is not automatically forwarded to the court, but the Board will forward the primary information relied upon if requested by the court. The Act provides that the Board's recommendation to the court is "confidential and shall not be available for public inspection." § 168-l(6).

 The sentencing court has 30 days within which to render a final decision on the offender's risk level classification. Section 168-n(3) requires the court to "allow the sex offender to appear and be heard." Within the 30-day period, the court must set a date for the offender's classification proceeding, provide notice to the offender of this proceeding, arrange for the offender's production from prison, assign counsel for the offender "if necessary," see § 168-n(3), review the Board's risk level recommendation and case summary and any other materials submitted by the offender, determine the offender's risk level classification, and inform the offender of his risk level and the consequences thereof. In the vast majority of cases, the court affirms the risk level recommendation submitted by the Board.

 c. Probationer-Parolee Offenders

 For convicted sex offenders who were already on probation or parole on the date the Act took effect, the procedures for risk level classification were somewhat different. The risk level classifications for all of these individuals were made either by the Department of Probation and Correctional Alternatives ("Probation") or the Division of Parole ("Parole"), with assistance from the Board. See § 168-g(1). Probation and Parole employees who assigned risk levels received one day of training in the application of the Act and the guidelines promulgated thereunder, and in the principles underlying the guidelines. A Probation or Parole staff member accessed the offender's file containing the necessary information for application of the guidelines and completed the initial risk level assessment. The case was then assigned to a member of the Board or a designee for final review. Ultimately, a Parole or Probation representative signed off on the offender's risk level assessment.

 The offenders in this group received no advance notice of their administrative classification proceeding. They were merely informed in writing of their risk level, the duties imposed on them by the Act, and their right to administratively appeal the agency's determination regarding their classification level, in writing within 20 days. If the offender chose to administratively appeal, he was assigned risk level one pending resolution of the appeal.

 2. The Facts

 a. The Probationer-Parolee Class

 The Probationer-Parolee class represents convicted sex offenders who committed their crimes prior to January 21, 1996, the date the Act took effect, and who were on probation or parole on the effective date of the Act. The risk level classifications for all of these individuals were made by Probation or Parole in accordance with the procedures described above. I will now briefly discuss the specific facts pertaining to the representatives of this class.

 (1) John Doe

 Plaintiff John Doe was convicted of attempted rape in the first degree in New York in 1990 and was sentenced to a period of incarceration. He was released on parole in 1994 and has remained on parole since then without incident. (Stip. P 6). On February 5, 1996, while on parole, Doe received a one-page notification that he had been classified by Parole as a level three sex offender and that he was thus "subject to lifetime registration and . . . must register quarterly." (Id. P 39). He was advised that he could petition the sentencing court to be relieved from registering, but not for "at least 10 years." (Id.) The notice also advised Doe that he could administratively appeal his classification level in writing, but the notice contained no information concerning the factors relied upon by Parole in classifying him as risk level three or what factors should be addressed in an appeal. (Id.)

 The risk assessment instrument prepared by Parole shows that Doe was initially given a score that placed him at the lower end of the level two range. The individuals from Parole who reviewed Doe's case, however, departed from this presumptive risk level and classified him at risk level three based on comments Doe allegedly made suggesting that he did not accept responsibility for ...

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