People v. Alemany, 14 N.Y.3d 424 (2010)
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A hearing court may assess points under risk factor 15 of the Sex Offender Registration Act (SORA) risk assessment instrument for an inappropriate living situation where there is clear and convincing evidence that the defendant is undomiciled and lacks any history of living in shelters or community ties, as this presents a “reduced probability of detection.”
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Summary
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The New York Court of Appeals addressed whether homelessness constitutes an inappropriate living situation under SORA’s risk assessment instrument. Miguel Alemany, convicted of attempted sexual abuse, was classified as a level two sex offender, in part because he received points for having an “inappropriate” living situation due to his homelessness. The Court of Appeals held that a hearing court can assess points under this risk factor when there is clear and convincing evidence the defendant is homeless and lacks ties to shelters or the community. The Court reversed the Appellate Division’s decision to reduce Alemany’s classification, reinstating the original level two designation because the evidence clearly showed Alemany’s homelessness and lack of community connections.
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Facts
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Miguel Alemany was arrested for attempted rape after attacking a jogger in Central Park. He admitted to police his intent to force himself on a woman. Prior to arraignment, a Criminal Justice Agency (CJA) report indicated Alemany was homeless for two years, without a known address, phone, or community contacts. A presentence report (PSR) also noted Alemany’s homelessness and unemployment. He pleaded guilty to attempted first-degree sexual abuse. The People sought to classify him as a level two sex offender, assigning 10 points under risk factor 15 (“Living or Employment Situation”) of the SORA guidelines because of his homelessness.
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Procedural History
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Supreme Court classified Alemany as a level two sex offender. The Appellate Division modified the Supreme Court’s order, reducing Alemany’s classification to level one, relying on People v. Ruddy. The People were granted leave to appeal to the New York Court of Appeals.
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Issue(s)
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Whether a hearing court may assess points under risk factor 15 of the Sex Offender Registration Act (SORA) risk assessment instrument for an inappropriate living situation based on clear and convincing evidence that the defendant is undomiciled and lacks any history of living in shelters or community ties.
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Holding
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Yes, because an undomiciled sex offender lacking a history of living in shelters or community ties presents a “reduced probability of detection,” as that term is used in the SORA guidelines, thus justifying the assessment of points under risk factor 15.
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Court’s Reasoning
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The Court of Appeals reasoned that the primary government interest behind SORA is protecting vulnerable populations from potential harm posed by sex offenders. SORA aims to furnish law enforcement with sufficient information to track and monitor sex offenders. Risk factor 15 considers whether a sex offender’s living situation gives them access to victims or reduces the probability of detection. The Court rejected a narrow interpretation of “reduced probability of detection” that limits it to situations where future crimes might go unreported because of the setting. The Court reasoned that a homeless sex offender without community ties is harder for law enforcement to locate, reducing their capacity to discover or investigate future crimes. The Court emphasized that its holding did not create a per se rule that all homeless sex offenders must be assessed points under risk factor 15; evidence of a history of living in shelters or community ties could negate such an assessment. The Court distinguished the case from People v. Ruddy, where the defendant had a history of living in a “sober house” and intended to return there, or to a shelter. Here, Alemany lacked any such history or plans. The court stated, “[T]he fact that . . . defendant is undomiciled creates a very difficult situation as far as the probability of detection for any violations.”