A defendant convicted of a sex offense is required to register under the Sex Offender Registration Act as Level 1 (low risk of reoffense), Level 2 (medium risk), or Level 3 (high risk). After this adjudication, a proceeding to modify the risk level may be brought under Corr L §168–o. The proceeding may be brought by either the prosecution or the defendant.
Petition to end registration
Under the first subdivision of §168–o, a Level 2 offender who lacks the designations (sexual predator, sexual violent offender, predicate sex offender) may petition for modification to be relieved from registering further. The petition may be brought no more often than every two years. But since this subdivision applies only if a person has been registered for 30 years, it is inapplicable until at least 2026.
Petition by Level 2 or 3
Under subdivision 2, any offender may bring a modification proceeding. The relief sought is to modify the level of notification. The statute does not provide for changing the offender’s “designation.” Under this subdivision, the modification petition can be brought once a year. The offender has the burden of proof, clear and convincing evidence, see People v. Grossman, 85 AD3d 1632 (4th Dept 2011).
Petition by prosecutor
Under subdivision 3, a prosecutor may bring a modification petition where the offender has been convicted of a new crime, or committed other conduct, and that indicates an increased risk of a repeat sex offense, People v. Turpeau, 68 AD3d 1083 (2d Dept 2009); People v. Greene, 83 AD3d 1304 (3d Dept 2011); see also, People v. Damato, 58 AD3d 819 (2d Dept 2009) (failure to follow procedure, such as filing motion rather than petition, required reversal, without prejudice).
Where a sex offender is convicted of a new qualifying sex offense, the prosecutor is not required to file a modification petition, People v. Iverson, 90 AD3d 1561 (4th Dept 2011).
Burden of proof
In each of these situations, the party seeking modification has the burden of proof, by clear and convincing evidence. Factors considered in the previous proceeding may not be considered again, see People v. Cullen, 79 AD3d 1677 (4th Dept 2010).
With a petition to reduce the registration level, the offender must show grounds for downward departure, or that the score under the Risk Assessment Instrument or another assessment instrument has changed.
The statute also addresses the right of appeal, see People v. Grossman, 85 AD3d 1632 (4th Dept 2011).
Update by board
Upon filing of the modification petition, the court should request an updated recommendation from the Board of Examiners of Sex Offenders. Corr L § 168–o(4).
Gary Muldoon is a lawyer and author of “Handling a Criminal Case in New York.” His email address is email@example.com.