New SORA hearing ordered for man convicted of rape

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A state appeals court has ordered a new hearing to determine the risk level for a man convicted of third-degree rape, as required under the New York State Sex Offender Registry Act (SORA).

Defendant Jacob Ritchie appealed a February 2020 decision by Wayne County Court Judge John B. Nesbitt that determined Ritchie to be a level three risk.

In a decision released March 11, the Appellate Division of state Supreme Court reversed Barrett’s decision and sent the matter back to County Court.

The state Board of Examiners of Sex Offenders assessed Ritchie 105 points in various categories, which led to a recommendation that he be classified as a level two risk.

But based on a previous felony conviction for a sex crime, the Board recommended that he be classified a level three risk, the highest designation.

At the SORA hearing, Ritchie’s attorney and the prosecutor agreed that Ritchie “should be scored at a Level II,” and Barrett agreed to issue an order to that effect.

There was no mention of the Board’s recommendation for a risk level three designation. But Barrett subsequently imposed a level three risk designation, “for failure to accept responsibility,” according to the decision.

Ritchie’s appellate attorney argued that Barrett’s decision was an error.

“We agree with defendant and conclude that he is entitled to a new SORA hearing,” the court wrote.

The court’s “departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to respond.”

The Fourth Department agreed it was incorrect for the Board to assess points against Ritchie for failure to accept responsibility after “he pleaded guilty and admitted his guilt,” the panel wrote.

Ritchie at one time said he believed the 16-year-old victim was 18 years old, but “pointing out a mitigating aspect of one’s conduct is not necessarily inconsistent with accepting responsibility for that conduct,” the court wrote.

“Inasmuch as defendant’s knowledge of the victim’s age is not an element of the offense to which defendant pleaded guilty and as defendant never denied that he had sexual intercourse with the underage victim, we conclude that his comment does not reflect a failure to accept responsibility for his actions,” the court wrote.

“We also note that defendant pleaded guilty to statutory rape as charged in the superior court information, obviating the need for the victim to testify before the grand jury,” the court wrote.

The Fourth Department also agreed that Barrett’s error was not harmless because the ruling violated Ritchie’s “right to due process.”

“It is well settled that the override for a prior felony conviction of a sex crime is not mandatory. Inasmuch as the court indicated that it agreed with the level two designation proposed by the parties, defendant was not afforded a meaningful opportunity to argue against the override or in favor of a downward departure,” the court wrote.

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