| People v Szwalla |
| 2009 NY Slip Op 03422 [61 AD3d 1289] |
| April 30, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v John S.Szwalla, Appellant. |
Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Broome County (Smith, J.), enteredJanuary 29, 2008, which classified defendant as a risk level three sex offender pursuant to theSex Offender Registration Act.
In 1966, defendant was convicted of burglary in the third degree, rape in the first degree(three counts) and carnal abuse of a child stemming from an incident wherein he and anaccomplice broke into a woman's home, repeatedly raped her at gun point and knife point, thensexually abused the woman's child. Following a hearing to redetermine his classification underthe Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]),County Court reduced defendant's total score on the risk assessment instrument from 175 to 155,still making him a presumptive level three sex offender. The court denied the People's argumentfor an automatic override but also denied defendant's request for a downward departure, insteadclassifying defendant as a level three offender. Defendant appeals.
Application of SORA to defendant did not violate his constitutional rights. Because SORAdoes not impose punishment, but is a civil statute aimed at prevention of crime and protection ofthe public, applying SORA to individuals who committed crimes prior to its enactment does notviolate the ex post facto or double jeopardy clauses of the US Constitution (see People v Bove, 52 AD3d1124, 1124 [2008]; People v Lee, 292 AD2d 639, 640 [2002]; [*2]Matter of M.G. v Travis, 236 AD2d 163, 166-167 [1997],lv denied 91 NY2d 814 [1998]; Doe v Pataki, 120 F3d 1263, 1265, 1284-1285[2d Cir 1997], cert denied 522 US 1122 [1998]). County Court complied with CorrectionLaw § 168-n, thereby providing defendant with due process. The court granted anadjournment so defense counsel could review sealed psychiatric records and prepare for thehearing. The statute does not require copies of sealed documents to be provided to defendant, aslong as counsel had the opportunity to review those documents. In any event, the court did notrely on the sealed psychiatric records in its determination. The procedure followed compliedwith the statute and the constitution.
County Court imposed the proper risk level classification. Even after reducing the point totaland denying an automatic override, defendant was still presumptively a level three offender.Defendant does not challenge the points assessed; he only contends that a downward departurewas appropriate due to the passage of time since his conviction and his failure to reoffend.Considering the nature of the crimes, defendant's prior youthful offender adjudication for a crimeof a sexual nature, his reincarceration after violations of parole on five separate occasions and hisstatement at the hearing that he still felt he was innocent of the charged crimes, defendant failedto establish special circumstances or mitigating factors justifying a departure from thepresumptive level (see People v Bove, 52 AD3d at 1125; People v Arotin, 19 AD3d 845,847 [2005]; People v Hunt, 17AD3d 713, 714 [2005], lv denied 5 NY3d 763 [2005]).
Cardona, P.J., Peters, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.