NY appeals court changes sex offender’s risk level

A New York state appeals court has overruled a lower court and changed a sexual offender’s risk level.

Monroe County Court Judge Karen Bailey, in September 2024, denied a petition from defendant Terry Wallace, who was seeking a modification of his risk level under New York state’s Sex Offender Registration Act (SORA).

Under SORA, a judge determines a convicted offender’s risk of re-offending and level of threat to public safety. Offenders are classified into one of three levels, with level one being the lowest risk. Wallace was previously categorized as a level 2 risk.

Wallace appealed Bailey’s ruling and the Appellate Division of state Supreme Court, Fourth Department, unanimously reversed Bailey and granted Wallace’s petition and determined him to be a level one risk under SORA.

A defendant subject to SORA requirements may petition “for an order modifying the level of notification. The petition shall set forth the level of notification sought, together with the reasons for seeking such determination,” the court wrote.

“The sex offender shall bear the burden of proving the facts supporting the requested modification by clear and convincing evidence,” the court wrote.

The relevant inquiry is whether conditions have changed subsequent to the initial risk level determination, the court noted.

“County Court did not abuse its discretion in denying the petition inasmuch as defendant failed to establish that he completed sex offender treatment and failed to update his annual photo,” the court wrote.

“Nonetheless, we reverse the order on appeal in the exercise of our discretion and grant the petition,” the panel ruled.

“Defendant has not sexually reoffended since his underlying offense requiring registration, and we agree with the determination of the Board of Examiners of Sex Offenders that there is no compelling reason that would further serve public safety for (Wallace) to remain at a (level two) classification inasmuch as he has shown by his law-abiding behavior for several years that he is capable of leading a prosocial and stable lifestyle,” the court wrote.

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