In 1996, the Sex Offender Registration Act (commonly known as
“SORA”) established a Sex Offender Registry in the state of New York. The purpose of the act was two fold. Firstly, it requires sex offenders to register with New York State. Secondly, it notifies the public about sex offenders living in their neighborhoods.

Who has to register under New York SORA?

SORA requires registration of individuals who are:

  1. Convicted of certain sex offenses in New York,
  2. Individuals with federal sex offense convictions, or
  3. Those with sex crimes convictions from other states.

Importantly, registration only applies to out-of-state convictions if the equivalent New York offense would be a registrable. Since January 21, 1996, SORA applies to convictions. Additionally, SORA applies to convictions before that date, when an individual was on probation or parole after that date.

New York Crimes with SORA Registration

Under New York Corrections Law Section 168, individuals who are convicted of either (1) a sex offense or (2) a sexually violent offense are subject to New York SORA Registration. Both these terms have special definitions.

1. Sex Offenses Subject to New York SORA Registration

Convictions for sex offenses and attempts to commit these sex offenses are subject to SORA Registration:

Sex Crimes Involving Adults
  • Sexual Misconduct (PL 130.20);
  • Rape in the Third (PL 130.25); or Rape in the Second Degree (PL 130.30);
  • Criminal Sexual Act in the Third (PL 130.40); or Criminal Sexual Act in the Second Degree (PL 130.45);
  • Sexual Abuse in the Second Degree (PL 130.60);
  • Sex Trafficking (PL 230.34);
  • Unlawful Surveillance in the First Degree (PL 250.50).
Sex Crimes Involving Children
  • Luring a Child (PL 120.70);
  • Sex Trafficking of a Child (PL 230.34-a);
  • Use of a Child in a Sexual Performance (PL 263.05);
  • Promoting an Obscene Sexual Performance by a Child (PL 263.10);
  • Possessing an Obscene Sexual Performance by a Child (PL 263.11);
  • Promoting a Sexual Performance by a Child (PL 263.15);
  • Possessing a Sexual Performance by a Child (PL 263.16);
  • Facilitating a Sexual Performance by a Child With Controlled Substance or Alcohol (PL 263.30);
  • Disseminating Indecent Material To Minors in the First Degree (PL 235.22);
  • Forcible Touching (PL 130.52), when the child is less than 18 years old;
  • Sexual Abuse in the Third Degree (PL 130.55), when the child is less than 18 years old.
Prostitution Crimes Involving Children
  • Patronizing a Prostitute in the Third (PL 230.04), Second (PL 230.05) and First Degree (PL 230.06);
  • Aggravated Patronizing a Minor for Prostitution in the Third (PL 230.11); Second (PL 230.12); and First Degree (PL 230.13);
  • Promoting Prostitution in the Third Degree (PL 230.25), where the person prostituted is less than 17 years old; and the Second Degree of a Person Less than 18 Years Old (PL 230.30(2)) and the First Degree (PL 230.32);
  • Compelling Prostitution (PL 230.33).
Kidnapping Offenses Against Children Where the Kidnapper is not the Parent of Victim
  • Unlawful Imprisonment in the Second (PL 135.05), and First Degree (PL 135.10);
  • Kidnapping in the Second Degree (PL 135.20);
  • Kidnapping in the First Degree (PL 135.25);
Incest
  • Incest in the Third (PL 255.25), Second (PL 255.26) and First Degree (PL 255.27).
Prior Convictions

Individuals with convictions for of a Sex Offense, a Sexually Violent Offense, Forcible Touching (PL 130.52) or Sexual Abuse in the Third Degree (PL 130.55) will be subject to SORA registration for a second conviction of Forcible Touching or Sexual Abuse in the Third Degree. This applies regardless of the victim’s age.

Convictions from Other Jurisdictions

Individuals with federal or out of state convictions, will be subject to SORA registration in New York, when the offense from the other jurisdiction:

  1. Includes all the elements of a New York SORA registration crime, or
  2. Is a felony in the other jurisdiction and subject to sex offender registration, or
  3. Involves convictions for federal offenses, that are substantially similar to New York offenses.
Federal Offenses Subject to New York SORA:
  • Sexual Exploitation of Children, 18 U.S.C. 2251;
  • Selling or Buying of Children, 18 U.S.C. 2251A;
  • Activities Relating to Material Involving the Sexual Exploitation of Minors, 18 U.S.C. 2252;
  • Acts Relating to Material Constituting or Containing Child Pornography, 18 U.S.C. 2255A;
  • Production of Sexually Explicit Depictions of a Minor for Importation into the United States, 18 U.S.C. 2260;
  • Coercion and Enticement, 18 U.S.C. 2422(b);
  • Transportation of Minors, 18 U.S.C. 2423;
  • Use of Interstate Facilities to Transmit Information about a Minor, 18 U.S.C. 2425.

2. Sexually Violent Offenses Subject to SORA Registration

In addition to the above, individuals convicted of sexually violent offenses are also subject to SORA. The definition of “sexually violent offenses” comes from New York Corrections Law Section 168-a(3). Specifically, the following are sexually violent offenses:

  • Rape in the First Degree (PL 130.35);
  • Criminal Sexual Act in the First Degree (PL 130.50);
  • Sexual Abuse in the First Degree (PL 130.65);
  • Aggravated Sexual Abuse in the Third (PL 130.66), Second (PL 130.67); and First Degree (PL 130.70);
  • Course of Sexual Conduct Against a Child in the First (PL 130.75) and Second Degree (PL 130.80);
  • Predatory Sexual Assault (PL 130.95) and Predatory Sexual Assault Against a Child (PL 130.96);
  • Persistent Sexual Abuse (PL 130.53);
  • Aggravated Sexual Abuse in the Fourth Degree (PL 130.65-a);
  • Facilitating of a Sex Offense with a Controlled Substance (PL 130.90).

Importantly, convictions for attempts to commit any of the above-listed Sexually Violent Offenses, are also subject to SORA.

Convictions from Other Jurisdictions

If a out of state conviction:

(1) has all of the essential elements of any of the above sexual violent felonies, OR

(2) is a felony in another jurisdiction in another state,

Then, SORA Registration in New York is required.

SORA Levels of Classification

SORA classifies sex offenders into three different categories. These are based on the underlying crime and the risk of reoffending. Specifically, the three SORA levels are:

  1. Low Risk (Level 1);
  2. Moderate Risk (Level 2);
  3. High Risk (Level 3).

How are SORA Classification Levels determined?

Defendants have a right to a hearing prior to the Court’s deciding the appropriate risk level. Also, this level is sometimes called the notification level.

The notification level is based on a numeric score. Specifically, the score comes from the case facts and the individual’s criminal history. Prior to the SORA hearing, the prosecutor will calculate their own score. Then, the prosecutor must provide the defense with the calculations of their numeric score on the Risk Assessment Instrument.

Risk Assessment Instrument

The Risk Assessment Instrument (“RAI”) is a scorecard that judges use to determine the SORA level. Prior to the hearing, the prosecution will do their own calculations of the RAI. Under Corrections Law Section 168, the prosecutor must give their calculations to the defense. The prosecutor must provide their calculations 10-15 days prior to the hearing.

Specifically, RAI takes into account the following factors:

  • age of the victim,
  • number of victims,
  • use of force or weapons,
  • injury to the victim,
  • relationship of defendant to victim.

Below is a sample RAI with all the corresponding numeric factors:

SORA RISK ASSESSMENT INSTRUMENT
RAI Scores and SORA Levels

As has been noted, the SORA level depends on the total score from RAI. Correspondingly, these are the point ranges for each level.

  • 0 to 75 points = Level 1
  • 75 to 105 points = Level 2
  • 110 to 300 points = Level 3

However, someone’s designation as a Sexual Predator, Sexually Violent Offender or Predicate Sexual Offender, however may override the length of SORA Registration.

Preparation for a SORA Hearing

Board of Examiners of Sex Offenders Recommendation

Firstly, for some cases, the Board of Examiners of Sex Offenders makes a recommendation to the judge about someone’s presumptive RAI score. However, the Board only makes recommendations on two types of case.

  • Firstly, in cases involving people returning to the community after serving a term of incarceration.
  • Secondly, in cases involving people convicted in other jurisdictions that are returning to New York.

However, in all other cases, the Board does not make a recommendation regarding the designation level.

Submissions from Defense and Prosecution

Additionally, the defense and the prosecution can submit relevant materials and evidence to the Court before the hearing. Hence, both parties have subpoena power to get the relevant records.

Furthermore, victims of the offense are able to submit victim impact statements to the Court.

New York SORA Hearing

Defendant’s Right to be Present

The defendant has a right to be present and to testify at the hearing. However, if the defendant does not appear, the sentencing will take place without him. Also, the Defendant has a right to be represented by counsel. Furthermore, if the defendant is financially unable to retain counsel, the Court will assign counsel.

Burden of Proof

The prosecutor bears the burden of proof at the SORA hearing. However, the burden of proof is much lower than it is at a criminal trial. Specifically, the prosecutor has to prove the relevant facts by clear and convincing evidence. The facts proven at trial, or those parts of the guilty plea, are deemed to be established by “clear and convincing evidence.” As a result, they will not be re-litigated. Additionally, the Court will consider “reliable” hearsay evidence submitted by either party.

New York SORA Hearing Procedure

There is no statutory guidance on how the hearing is to be conducted. Generally, the prosecutor will first. The Court will give the prosecutor an opportunity to present evidence and witnesses. Defense is allowed to cross-examine witnesses. The prosecutor will then go through the 15 risk factors and indicate which ones they believe apply. Then, the prosecutor will provide their total of assessment points.

Afterwards, the Court will give the Defense an opportunity to submit documents or witnesses. Defense also presents arguments for each of the contested risk factors. In fact, if there is a dispute between the parties about a fact, the Court will adjourn the matter to get relevant materials.

Decision Regarding SORA Registration Level

Because of Corrections Law Section 168, the Court will issue an order explaining the determinations. As well as the findings of fact and conclusions of law on which the determinations are based.

At the hearing, the Court will also determine whether the defendant should be designated a “sexual predator,” a “sexual violent offender” or a “predicate Sex Offender” or that none of these three apply.

Differences in New York SORA Registration Levels Explained

Low Risk of Repeat Offense (Level 1)

Risk Level 1 Individuals:

  • Are not subject to public registration;
  • Have a 20 year registration. However if they have a special designation, the duration of registration is life.
  • Are not able to modify the risk level, since they are already at the lowest one.
  • Must annually verify their residence (via mail);
  • Do not have to do an annual employment verification;

Moderate Risk of Repeat Offense (Level 2)

Risk Level 2 Individuals:

  • Are subject to public registration;
  • Must register for life. However, after 30 years they can petition for relief from registration. So long as they do not have a special designation;
  • Can apply to modify their risk level down under Corrections Law 168-o;
  • Must annually verify their residence (via mail);
  • Have to do an annual employment verification (via mail);

High Risk of Repeat Offense and a Threat to Public Safety (Level 3)

  • Subject to public registration
  • Lifetime Registration
  • Can apply to modify their risk level down under Corrections Law 168-o;
  • Must annually verify their residence (via mail);
  • Have to do an annual employment verification (via mail);

SORA Designation

In addition to deciding the risk level, the Court will also determine if someone should receive a special designation. Specifically, the designations are:

  • Sexual Predator, OR
  • Sexually Violent Offender, OR
  • Predicate Sexual Offender.

These special designations override certain provisions within a Registration Level. For example, let’s say the sentencing court designates a Level 1 offender a sexual predator. While the duration of registration for a Level 1 offender is 20 years, that is not the case for a Level 1 Offender with a special designation. Duration of registration for a Level 1 Sexual Predator is life. Hence, this special designation will override the 20 year duration for a Level 1 Offender.

New York SORA Petition for Relief from Registration 

After registering for 30 years, a Level 2 Sex Offender without a special designation can petition the sentencing court to end registration. Specifically, the application process is explained in Correction Law §168-o(1).

New York SORA Petition to Modify Risk Level 

Any registered sex offender or district attorney may petition the sentencing court or the court which made the determination regarding the level of notification for an order modifying the level of notification (risk level). Correction Law §168-o sets forth the procedures to follow when a registered sex offender or the district attorney wishes to file a petition to modify an offender’s risk level.

Additionally, Correction Law §168-o, allows both the district attorney and the registered sex offender to ask the court for an order modifying the risk level. The registered sex offender has the burden of proof by clear and convincing evidence. That is to say, the burden to show that the “risk of repeat offense and threat to public safety is such that registration or verification is no longer necessary.”

Contact Experienced NY SORA Attorneys Today

New York sex offenses have long sentences. In addition to jail time, SORA registration may be hanging over your head for decades, if not your whole life. It is important to consult an experienced New York SORA Attorney for guidance with your SORA Hearing. Additionally, we can help with petitions for relief from registration and petitions for risk level modification.

Please call us today for help with your SORA case at 212-729-9494 or contact us today for your free initial consultation.