By Joseph Ax
NEW YORK, Feb 12 (Reuters) - Prosecutors must show by "clear
and convincing evidence" that an offender used alcohol
excessively either in the past or at the time of the offense to
justify a finding of abuse under the state's Sex Offender
Registration Act, the New York Court of Appeals said Tuesday.
Sex offenders are required to register with the state under
SORA, which assigns each registrant a risk level based on a
number of factors, including alcohol and drug abuse.
"Moderate drinking of alcoholic beverages does not qualify
as abuse under the SORA risk factors," wrote Chief Judge
Jonathan Lippman for a unanimous court.
The ruling reversed a pair of decisions from the Second and
Fourth Departments of the Appellate Division that found two sex
offenders had abused alcohol and, as a result, assigned them
higher risk levels.
Michael Palmer, convicted of molesting an underage victim in
Brooklyn over a period of two years, was found to be a level two
sex offender in 2010. Palmer told authorities he had some drinks
at an after-work party on the day of the first incident but
denied drinking at any other time.
Cornell Long, a Buffalo man convicted of forcing his
girlfriend to have anal and oral sex, was designated a level two
sex offender in 2009. Long told the probation department that he
had a few beers on the night of the crime and that he
occasionally drank alcohol.
The Second and Fourth Departments affirmed these decisions
In reversing, the Court of Appeals pointed to SORA's
guidelines, which permit offenders to be assessed risk points
for alcohol abuse if "an offender ... was abusing drugs and/or
alcohol at the time of the offense" but said that "occasional
social drinking" is not meant to be included.
In both the Palmer and Long cases, Lippman wrote, there was
no indication that the defendants were intoxicated or that the
alcohol was linked in any way to their behavior.
Calls to the Brooklyn district attorney's office, which
prosecuted Palmer, and the Erie district attorney's office,
which prosecuted Long, were not immediately returned.
In an email, Palmer's lawyer, Anna Pervukhin, said the
decision was "in keeping with the primary purpose of New York's
SORA statute, which is to enhance public safety by making
accurate assessments of the risk an offender poses to the
Long's attorney, Vincent Gugino, did not immediately respond
to a call for comment.
The cases are People v. Palmer and People v. Long, New York
Court of Appeals, Nos. 14 and 15.
For Palmer: Anna Pervukhin of Appellate Advocates.
For the Brooklyn district attorney's office: Assistant
District Attorney Adam Koelsch.
For Long: Vincent Gugino of the Legal Aid Bureau of Buffalo.
For the Erie district attorney's office: Assistant District
Attorney David Heraty.
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