People v. Krull, No. 16163 (N.Y. App. Div. 1d 2022)
Nature of Case: In 2017, following a trial, defendant was found guilty of two counts of rape in the second degree, two counts of criminal sexual act in the second degree, and one count of endangering the welfare of a child. Defendant denied his guilt throughout the proceedings and testified on his own behalf. Defendant was ultimately sentenced to an aggregate term of three years’ imprisonment to be followed by five years of post-release supervision.
In January of 2018, defendant began a six-month sex offense counseling and treatment program. After five months, defendant was removed from the program because he “failed to accept responsibility for the acts that led to his conviction.”
In 2019, the Board of Examiners of Sex Offenders issued a risk assessment which assessed defendant a total of 80 points and recommended that he be classified as a level two under the Sex Offender Registration Act (“SORA”). 15 of the 80 points assessed were based on defendant’s failure to accept responsibility for the underlying criminal acts and expulsion from treatment. Prior to his SORA hearing, defendant argued that he should not be assessed the additional 15 points because he was only removed from treatment because he would not admit guilt to the underlying offenses. “Importantly, defendant . . . refused to admit guilt because he had testified at trial and his direct appeal remained pending.” Following defendant’s SORA hearing in January 2020, the Court ultimately concluded that defendant should be assessed 10 points for failing to accept responsibility, rather than the 15 recommended by the Board.
On appeal, defendant contends that the court erred in adopting the Board’s recommendation that he receive any points for failure to accept responsibility. He argues that the assessment of points violated his Fifth Amendment right against self-incrimination because he could not admit to the underlying conduct without facing a potential perjury prosecution in light of his trial testimony and his direct appeal was pending.
Holding: Following the rationale of Justice O’Connor’s concurrence in McKune v. Lile, 536 U.S. 24 (2002), the Appellate Court held that, because of the life-long implications of a sex offense risk level, when a defendant has invoked his Fifth Amendment right against self-incrimination and (1) his trial testimony denied the allegations and (2) he has a pending direct appeal, the SORA court should not assess any points for a failure to accept responsibility.