Opinion
SMZ No. 70122-23
08-03-2023
In the Matter of the Application of A. KENT GORHAM a/k/a ALAN KENT GORHAM, to modify his sex offender risk level status under SORA by removing him from the New York Sex Offender Registry maintained by the Division of Criminal Justice Services.
LAW OFFICES OF JOSEPH J. TOCK Attn: Joseph J. Tock & Patty Carey Attorneys for Petitioner A. Kent Gorham. PUTNAM COUNTY DISTRICT ATTORNEY'S OFFICE Attn: Chief ADA Chana Krauss.
Unpublished Opinion
LAW OFFICES OF JOSEPH J. TOCK Attn: Joseph J. Tock & Patty Carey Attorneys for Petitioner A. Kent Gorham.
PUTNAM COUNTY DISTRICT ATTORNEY'S OFFICE Attn: Chief ADA Chana Krauss.
DECISION & ORDER
ANTHONY R. MOLE Judge.
The following papers were read and considered on the petition filed by A. KENT GORHAM a/k/a ALAN KENT GORHAM (hereinafter Petitioner), made pursuant to Correction Law § 168-0,to modify his sex offender status under the Sex Offender Registration Act (see Correction Law art. 6-C [hereinafter SORA]), by removing him from the New York State Sex Offender Registry:
While Petitioner's "notice of petition" cites Correction Law §§ 168-a (1) and (2) (d) (ii), those statutory provisions are simply definitions for "sex offender" and a "sex offense" which is a "felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred." In short, these particular statues do not provide a vehicle for any relief under SORA.
Papers:
• Notice of Petition, Petition, Affirmation in Support, Memorandum of Law, Exhibits A-F
• Email Correspondence from the New York State Board of Examiners of Sex Offenders (dated July 31, 2023)
• Email Correspondence from the New York State Division of Criminal Justice Services (dated August 1, 2023)
Prefatorily, the Court assumes that the parties are familiar with the underlying facts and the procedural history of this case and therefore addresses the facts only as necessary to adjudicate the petition presently before this Court.
I. Background
In 1993, Petitioner was convicted in Oregon of sexual crimes committed against his then five-year old daughter. Petitioner was found guilty, after a jury trial, on three counts of first-degree rape and three counts of first-degree sexual abuse. Petitioner's first two trials ended in a mistrial. He was convicted by a jury at his third trial. Subsequently, his judgment of conviction was affirmed by an Oregon appellate court and also the Supreme Court of Oregon (see Gorham v Thompson, 978 P.2d 443,444-445 [OrCtApp 1999], affd 34 P.3d 161 [2001]) Of import here, the jury's guilty verdict was nonunanimous since 10 of the 12 jurors found him guilty on three counts and 11 of the 12 jurors found him guilty on the other three counts. As part of his conviction, Petitioner was required to register as a sex offender in Oregon - namely, with the Oregon State Police Sex Offender Registration Section.
Later, Petitioner's federal habeas petition brought under 28 USC § 2254 was denied by the federal District Court and ultimately affirmed by the United States Court of Appeals for the Ninth Circuit (see Gorham v Thompson, 2004 WL 2650887, 118 Fed.Appx 141, 141-142 [9th Cir 2004]).
Petitioner thereafter moved to New York. Upon his relocation to New York in 2009, the Board of Examiners of Sex Offenders (hereinafter the Board), advised defendant that he was required to register as a sex offender in this state. The Board completed a risk assessment instrument in accordance with SORA that presumptively classified him as a risk level two sex offender. Generally, an individual who is convicted in another state of a sex offense, which includes all of the essential elements of a crime in New York state, must register as a sex offender here (see Correction Law § 168-a [2][d] [i]; Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 N.Y.3d 745, 748-749 [2007]).
Based on his Oregon conviction, Petitioner was adjudicated in 2009 by Supreme Court, New York Court (Merchan, J.) as a risk level two sex offender for purposes of SORA. In 2010, Petitioner successfully petitioned the Supreme Court, pursuant to Correction Law § 168-o (2), to downwardly modify his sex offender risk level classification from level two to level one. His prior modification petition was granted by Justice Merchan pursuant to a "Decision and Order" dated October 17, 2010.
Given his SORA adjudication is risk level one, Petitioner is required to file his annual sex offender registration forms with the New York State Division of Criminal Justice Services (hereinafter the Division). He must do so every year "for a period of [20] years from the initial date of registration" (Correction Law § 168-h [1]).
"The stated purpose of New York's Sex Offender Registration Act is predominantly regulatory. The Legislature's goals are, among other things, to protect the public from the danger of recidivism posed by sex offenders. SORA is a remedial statute intended to prevent future crime; its aim is to protect communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities' ability to fight sex crimes" (People v Corr, 208 A.D.3d 136, 140 [2d Dept 2022], Iv granted 39 N.Y.3d 905 [2023] [internal quotation marks, brackets, and citations omitted]).
On July 28, 2023, Petitioner filed a petition in this Court, grounded in Correction Law § 168-o, seeking to modify his SORA status by "removing him [from] New York's SORA registry." His petition is largely predicated on recent opinions from the Supreme Court of the United States and the Supreme Court of Oregon - which prompted vacatur of his 1993 Oregon conviction and ultimate dismissal of the indictment by Oregon authorities. Initially, some background is necessary to contextualize and show the path of recent developments that led to this proceeding.
First, in Ramos v Louisiana (140 S.Ct. 1390 [2020]), the Supreme Court of the United States overturned prior precedent - established by Apodaca v Oregon (406 U.S. 404 [1972]), holding that state juries did not need to have a unanimous verdict to convict a criminal defendant. In abrogating Apodaca, the Supreme Court of the United States held in Ramos that the Sixth Amendment to the United States Constitution mandates that a jury must be unanimous in their verdict in both state and federal criminal trials; and a state jury must be unanimous to convict a criminal defendant of a serious crime or offense (see Ramos v Louisiana, 140 S.Ct. at 1397). But Ramos apparently left open the question of retroactive application. That paved the way for another decision the following year.
In 2021, the Supreme Court of the United States further held that the Ramos jury -unanimity rule "does not apply retroactively on federal collateral review" (Edwards v Vannoy, 141 S.Ct. 1547, 1551-1552); but notably, left it to the States to "retroactively apply the jury-unanimity rule as a matter of state law in state post-conviction proceedings" as it concerned state criminal prosecutions (id. at 1559 n 6). The State of Oregon did just that not too long ago in Watkins v Ackley, 523 P.3d 86 [2022]). There, the Oregon Supreme Court held that the Sixth Amendment's constitutional protections apply retroactively under state law to void convictions obtained by nonunanimous jury verdicts (see id. at 102-103) The Watkins Court also held that retroactive, state post-conviction relief is available for a violation of the right to a unanimous jury (see id.).
In light of Watkins, Petitioner and the State of Oregon, as part of his post-conviction proceedings, stipulated in May of 2023 that his conviction be vacated, and the criminal case against him be remanded to the trial court for further proceedings. The State of Oregon then moved to dismiss the indictment in lower court. Then, the Circuit Court, Lane County (Kamala H. Shugar, J.), ordered that the underlying indictment be dismissed "[g]iven the passage of time and the wishes of the . . . victim," pursuant to the "Order Dismissing Indictment and Judgment" issued May 26, 2023.
Due to dismissal of his criminal case, the Oregon State Police Sex Offender Registration Section, by letter dated June 23, 2023, advised Petitioner that he is "not required to report for sex offender registration in Oregon" (emphasis supplied); and that he need not report annually or keep them apprised of any changes of his address. This charted a path for Petitioner to file this application.
Upon filing of Petitioner's application, the Court forwarded a copy of the petition and accompanying documents to the Board, and requested an updated recommendation, as is mandated by Correction Law § 168-o (4) (see Correction Law § 168-1 [7] ["(t)he (B)oard shall provide an updated report pertaining to the sex offender petitioning for relief of the duty to register or for a modification of his or her level of notification"]). In an email response sent July 31, 2023, an attorney from the Board stated that "[i]t appears that the Sex Offender Registry is in the process of removing Mr. Gorham, therefore there would be nothing further the Board could do with this matter." So, the undersigned's court attorney sought further clarification as to the Board's position; whereafter, the attorney from the Board explained in a subsequent email that if Petitioner was in fact removed by the Division from the Sex Offender Registry, then "the matter is moot as there would be no level from which to seek a modification"; and thus, no petition may be brought under Correction Law 168-o. The Court then contacted the Division to ascertain Petitioner's present status. Relevant here, the Division sent correspondence on August 1, 2023, confirming that petitioner "was removed from the Registry today."
II. Discussion
"Correction Law § 168-o (2) permits a sex offender required to register pursuant to SORA to petition annually for modification of his risk level classification." (People v Charles, 162 A.D.3d 125, 140 [2d Dept 2018], Iv denied 32 N.Y.3d 904 [2018]). That statute further provides that "a sex offender may petition to modify his or her level of notification, and in such proceedings, '[t]he sex offender shall bear the burden of proving the facts supporting the requested modification by clear and convincing evidence'" (People v Wyatt, 89 A.D.3d 112, 125 [2d Dept 2011], Iv denied 18 N.Y.3d 803 [2012], quoting Correction Law § 168-o [2]).
Because SORA is remedial in nature, its statutory scheme should be construed broadly and liberally to effectuate its purpose (see Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 N.Y.3d at 752; Matter of Doe v O 'Donnell, 86 A.D.3d 238, 240 [3d Dept 2011], Iv denied 17 N.Y.3d [20ll]). "And where, as here, 'the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency'" (Matter of Daimler Chrysler Corp, v Spitzer, 7NY3d653, 660 [2006], quoting Matter of Greene [New York City Dept. of Personnel-Sweeney], 89 N.Y.2d 225, 231 [1996]). "Where a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (Matter of Alonzo M. v New York City Dept, of Probation, 72N.Y.2d 662, 665 [1988]; see People v Jackson, 87N.Y.2d 782, 788 [1996]).
"The stated purpose of New York's Sex Offender Registration Act is predominantly regulatory. The Legislature's goals are, among other things, to protect the public from the danger of recidivism posed by sex offenders. SORA is a remedial statute intended to prevent future crime; its aim is to protect communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities' ability to fight sex crimes" (People v Corr, 208 A.D.3d 136, 140 [2d Dept 2022], Iv granted 39 N.Y.3d 905 [2023] [internal quotation marks, brackets, and citations omitted]).
"While SORA allows any sex offender to petition for modification, as a practical matter, no relief is available to a risk level one sex offender, who is already classified in the lowest designation and has no statutory right to petition for complete relief from registration" (People v Wyatt, 89 A.D.3d at 125 [internal brackets, quotation marks, and citation omitted]; see Matter of Attorney Gen. of the State of N.Y. v Simon, 27Misc.3d 546, 547-548 [Sup Ct, Dutchess County 2010]; see generally Matter of Gregory v People of the State of New York, 36 Mise 3d 544, 548-549 [Sup Ct, Monroe County 2012]).
A SORA proceeding is a civil proceeding to determine the risk of reoffense by a person convicted of a qualifying sex offense and to adjudicate the offender's proper risk level (see People v Mingo, 12 N.Y.3d 563, 571 [2009]). Generally, SORA requires individuals convicted of certain specified sex offenses to register with the Division, which maintains a publicly-available database of their information known as the Sex Offender Registry (see Correction Law §§ 168-a, 168-b, 168-c; see generally L 1995, ch 192). In practice, almost anybody can now gain access to certain personal information of a registered sex offender.
As a threshold matter, Petitioner inappropriately seeks relief predicated on Correction Law § 168-o (2), which, in essence, does not provide him a vehicle to do so given his risk one level status (People v Wyatt, 89 A.D.3d at 125). Significant to this matter, Correction Law § 168-f (5) states that "[t]he duty to register under the provisions of [SORA] shall not be applicable to any sex offender whose conviction was reversed upon appeal or who was pardoned by the governor" [emphasis added]). Said differently, "exemption from SORA's registration obligations is permitted . . . upon appellate reversal of the sex offender's conviction" (Matter of Doe v O 'Donnell, 86 A.D.3d at 240; see Correction Law § 168-f [5]). Here, the Watkins Opinion issued by the Oregon Supreme Court changed Oregon state law by voiding criminal convictions of defendants that were obtained by nonunanimous jury verdicts - which, in turn, prompted dismissal of the underlying indictment. In practicality, Correction Law § 168-f (5) is most closely analogous to the situation at hand.
On the other hand though, the Court could theoretically treat the subject petition as a motion to be released from the SORA registration and reporting requirements mandated by Correction Law § 168-h (1) (see e.g. People v Hlatky, 153 A.D.3d 1538, 1539 [3d Dept 2017]; People v Rocktaschel, 151 A.D.3d 1650, 1650-1651 [4th Dept 2017], Iv denied 30 N.Y.3d 989 [2017]). However, it need not do so because the Division has already informed the Court that it has removed Petitioner from the Sex Offender Registry. This revelation forecloses an adjudication on the present application.
Insomuch as Petitioner's Oregon conviction was vacated, the underlying criminal case was dismissed by the Oregon trial court, and the fact that the Division has notified this Court that Petitioner's information has been removed the from the Sex Offender Registry, his petition is, in effect, rendered moot (see Correction Law § 168-f [5]). Stated simply, there would be no risk level from which Petitioner could seek a modification if he is no longer designated as a sex offender. He has been already removed from the Sex Offender Registry. Hence, this Court cannot grant him any further relief, nor is it empowered to decide a moot question or abstract proposition. Thus, the subject petition - and to the extent Petitioner's application can be deemed a motion - must be denied and dismissed since the exception to the mootness doctrine is inapplicable to his case (see People v Hartwick, 181 A.D.3d 1098, 1099 [3d Dept 2020]; People v Rocktaschel, 151 A.D.3d at 1650-1651; see generally Matter of Hearst Corp, v Clyne, 50 N.Y.2d 707, 714-715 [1980]). Accordingly, it is hereby:
ORDERED AND ADJUDGED THAT THE PETITION OF A. KENT GORHAM A/K/A ALAN KENT GORHAM, MADE PURSUANT TO CORRECTION LAW § 168-O, TO MODIFY HIS SEX OFFENDER STATUS UNDER SORA, BY REMOVING HIM FROM THE NEW YORK STATE SEX OFFENDER REGISTRY, IS DENIED and DISMISSED as moot.
The foregoing constitutes the decision and order of this Court. The Clerk of the Court shall forward a copy of this Decision and Order to the State Division of Criminal Justice Services.