NY appeals court reverses sex offender risk ruling

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A state appeals court has rescinded a lower court ruling setting the risk level of a sex offender because the prosecution never requested the determination and the judge failed to explain the basis for his ruling.

In Yates County, state Supreme Court Justice Jason L. Cook, in November 2023, determined that defendant Stephanie A. Ridley was a level three risk under the state Sex Offender Registration Act.

The Appellate Division of state Supreme Court, Fourth Department, unanimously reversed Cook’s finding “in the interest of justice and on the law.”

Ridley’s appellate attorney, Michael Jos. Witmer, argued that Cook should not have assessed points against Ridley under risk factor 2 because the prosecution “failed to establish by clear and convincing evidence that she engaged in sexual intercourse with the victim.”

The Fourth Department rejected that contention.

“Although there is no evidence that defendant herself actually engaged in sexual intercourse with the victim, the court properly determined that the People met their burden by establishing that, under the circumstances of this case, defendant shared the intent of a person who engaged the victim in sexual intercourse,” the court wrote.

But the prosecution did concede that Cook violated Ridley’s right to due process by assessing points against Ridley on his own that were not requested by the prosecutor.

Although Ridley’s lawyer failed to object to the assessment of points when Cook rendered his oral decision, the Fourth Department reviewed the issue “in the interest of justice in light of the substantial infringement upon (Ridley’s) due process and statutory rights,” the court wrote.

The prosecution claimed that any error by Cook in assessing points against Ridley on his own was harmless because Cook granted the prosecution request for an upward departure to risk level three.

“We disagree. Even assuming … that the harmless error doctrine applies in this context, we conclude that the error here cannot be deemed harmless inasmuch as we further agree with defendant that the court erred in granting the People’s request for an upward departure,” the panel wrote.

The court ruled that Cook failed to comply with the requirement of Correction Law Section 168-n (3) that he reveal findings of fact and conclusions of law that formed the basis of his decision to grant the prosecution’s request.

In his decision, Cook “merely concluded, under the first part of the relevant three-part analysis, that the People had identified aggravating circumstances not adequately taken into account by the guidelines.”

The decision did not make a determination on the other two parts of the relevant analysis, the Fourth Department wrote.

After identifying the aggravating circumstances, Cook granted the People’s application for an upward departure, without weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure, according to the decision.

“We reverse the order, vacate defendant’s risk level determination, and remit the matter to Supreme Court for a new risk level determination, and a new hearing, if necessary,” the court wrote.

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