Defendant appeals from the order of the Supreme Court, Bronx County (Steven Lloyd Barrett, J.), entered on or about April 1, 2010, which adjudicated him a level three sexually violent offender pursuant to the Sex Offender Registration Act.
Steven Banks, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Ravi Kantha and Joseph N. Ferdenzi of counsel), for respondent.
Peter Tom, J.P., Richard T. Andrias, David B. Saxe, Judith J. Gische, JJ.
In this appeal, we consider whether amendments made to the Sex Offender Registration Act (SORA) (Correction Law art 6-C) since 1996, that, among other things, impose more stringent registration and notice requirements for convicted sex offenders, have rendered the act a punitive statute, so that its retroactive application to defendant violates the Ex Post Facto Clause or the state and federal constitutional prohibition against double jeopardy. For the reasons that follow, we find that SORA, as amended, does not constitute an impermissible ex post facto law or subject defendant to double jeopardy and that the record supports defendant's adjudication as a level three sexually violent offender.
On June 11, 1996, defendant pleaded guilty to attempted murder in the second degree, admitting that on September 11, 1993 he raped a woman and repeatedly stabbed her in the chest. While defendant was incarcerated, his DNA was found to match the DNA developed from a semen sample collected from another rape victim on August 29, 1993, and defendant was indicted for that crime, which was committed while he was on parole after a 1990 conviction for robbery in the second degree. On June 25, 2003, defendant pleaded guilty to rape in the first degree and sodomy in the first degree. On September 16, 2003, he was sentenced, as a second violent felony offender (based on the robbery conviction), to 7 to 14 years, to run concurrently with the sentence on the attempted murder conviction. 
Before his conditional release date, the Board of Examiners of Sex Offenders (Board) prepared a case summary and risk assessment instrument (RAI) that assessed a total score of 170 points for various risk factors, which placed defendant presumptively in risk level three under SORA. The Board also recommended that defendant be designated a sexually violent offender based on his first-degree rape and sodomy convictions (see Correction Law § 168-a). Defendant then moved to be classified at a lower risk level and to find SORA unconstitutional on its face and as applied to him. On April 1, 2010, after a hearing, defendant was designated a level three sexually violent offender under SORA.
SORA, effective January 21, 1996 (see L 1995, ch 192, § 3), imposes registration requirements on " [s]ex offender[s], '" i.e., "any person who is convicted of" certain sex offenses enumerated in the statute (Correction Law § 168-a). The act "applies to sex offenders incarcerated or on parole or probation on its effective date, as well as to those sentenced thereafter, thereby imposing its obligations on many persons whose crimes were committed prior to the effective date" (Doe v Pataki, 120 F.3d 1263, 1266 [2d Cir 1997], cert denied 522 U.S. 1122 ; see Correction Law § 168-g).
In Doe v Pataki, the Second Circuit held that the retroactive application of SORA did not violate the Ex Post Facto Clause because the statute was intended to further the nonpunitive goals of protecting the public and enhancing law enforcement authorities' ability to investigate and prosecute future sex crimes, and neither SORA's public notification requirements nor its registration requirements were so punitive in form and effect as to negate the Legislature's nonpunitive intent (120 F.3d at 1277, 1284, 1285; see also Correction Law § 168). Defendant argues that SORA has been amended so significantly since Doe that it is now a punitive statute, and that its retroactive application to him violates the Ex Post Facto Clause and the state and federal constitutional prohibition against double jeopardy.
States are prohibited from enacting an ex post facto law (US Const, art. I, § 10), i.e., a law that "retroactively alter[s] the definition of crimes or increase[s] the punishment for criminal acts" (Collins v Youngblood, 497 U.S. 37, 43 ).
"A statute will be considered an ex post facto law if it punishes as a crime an act previously committed, which was innocent when done, ' makes more burdensome the punishment for a crime, after its commission, ' or deprives one charged with crime of any defense available according to law at the time when the act was committed'"
(People v Foster, 87 A.D.3d 299, 306 [2d Dept 2011] quoting Beazell v Ohio, 269 U.S. 167, 169 , lv denied 18 N.Y.3d 858 ).
In determining whether a statute renders the punishment for a crime more burdensome for purposes of the Ex Post Facto Clause, the United States Supreme Court has implemented an intent- effects test (see Smith v Doe, 538 U.S. 84, 92 ). Under the first prong of this test, the court determines whether the Legislature intended the statute to be punitive or civil in nature. If the court finds that the ...