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Decisions

Two Court of Appeals Wins for One Client in SORA Case

03/30/17

Appellate Advocates client William Cook was convicted of sex offenses in both Queens and Richmond counties.  Upon his release, separate SORA hearings were scheduled to take place in each county at around the same time.  The Board of Examiners of Sex Offenders prepared one Case Summary, “based on all the crimes of which the defendant had been convicted in both counties,” to be used at both hearings.  Appellate Advocates was assigned to represent Mr. Cook at both SORA hearings.

At the first (Richmond) hearing, Mr. Cook was designated a Level Three offender.  Appellate Advocates appealed to the Appellate Division, Second Department, but the adjudication was affirmed.  Leave was granted to determine when points should be assessed under Risk Factor 7 (Relationship With Victim).  On March 30, 2017, the Court of Appeals held that the Risk Factor 7 points should not have been assessedreversed the Level Three adjudication, and sent the case back down to the Appellate Division for an assessment of the SORA court’s alternative finding that an upward departure to Level 3 was warranted.

After the Richmond hearing, Appellate Advocates moved to dismiss the second (Queens) SORA hearing as barred by res judicata, but the court denied the motion, held the hearing, and designated Mr. Cook a Level Three offender in that case too.  Appellate Advocates appealed both the merits of the court’s Level Three designation and the lower court’s refusal to dismiss the proceeding as barred by res judicata.  Holding that “only one SORA ‘disposition’ may be made per ‘Current Offense’ or group of ‘Current Offenses,” the Second Department reversed the lower court’s denial of the res judicata motion and dismissed the merits argument as academic.  The People’s leave application was granted in the Queens case to address the res judicata ruling.  On March 30, 2017, in an opinion written by Judge Garcia, the Court of Appeals affirmed, holding that “[w]here, as here, a single RAI addressing all relevant conduct is prepared, the goal of assessing the risk posed by the offender is fulfilled by a single SORA adjudication.”

Lisa Napoli of Appellate Advocates briefed and argued both cases in the Court of Appeals.  Erica Horwitz represented Mr. Cook in connection with his appeals to the Appellate Division, Second Department, and Warren Landau, formerly of Appellate Advocates, represented Mr. Cook at both SORA hearings and in connection with this appeals.