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New York Legal

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A view of the Court of Appeals in Albany. REUTERS Hans Pennink

Courts erred in finding alcohol abuse for sex offenders: Court of Appeals

2/12/2013 COMMENTS (0)

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 on appeal.

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 public."

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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