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Appealing Sex Offenses and Risk Level Determinations

Sex offense appeals require the help of an attorney knowledgeable about this subset of the appellate process. Many attorneys overlook the complexity of challenging sex offense convictions and sex offender registration rulings and fail to take advantage of the many opportunities for an appeal.

An appeal of a sex offense conviction may have more opportunities for success because of the dubious nature of the evidence. Most people think that a sex offense trial resembles an episode of Law and Order: Special Victims Unit, where a team of doctors find a mountain of forensic evidence and DNA, which proves guilt beyond a reasonable doubt. In reality, most sex offenses are he-said-she-said situations, and the cases rest on the credibility of an accuser. Sometimes, both parties will admit to having engaged in sexual conduct, and the only issue is whether the defendant used force.

Often, a sex offense appeal can argue against improper Grand Jury procedure, unfair jury selection, and a conviction against the weight of the evidence. If the Grand Jury indicts a person even though the only evidence comes from an unbelievable accuser, an appellate court may overturn the entire conviction due to a lack of probable cause. Similarly, the jury selection process for a sex offense trial often results in the selection of at least one biased juror. The judge's failure to strike this juror can lead to an appealable issue. In many instances, a jury has found a defendant guilty despite the evidence not proving guilt beyond a reasonable doubt. An appellate court has the power to overturn a guilty verdict if the evidence fails to support a finding of guilt. Although these decisions are rare with most types of criminal appeals, sex offenses have resulted in a larger number of overturned convictions based on a lack of evidence.

An appeal of a SORA hearing or risk level determination need not be based on a technical mistake (unlike most other types of appeals). The Appellate Division may adjust a risk level determination based on a review of the record. It is important to hire a SORA attorney to develop and preserve the record during the hearing for a possible appeal. The SORA attorney must predict every possible argument used by the District Attorney and must cite all of the arguments and law in support of the lowest possible risk designation.

If the circumstances of a case present an untried constitutional issue, the attorney may challenge in state and federal court the constitutionality of the actual law as applied to a particular person. In rare cases, the attorney may present a challenge to the constitutionality of the law in general. In the past, these challenges often failed because of the hysteria surrounding sex offenders. Now that more scientific evidence exists, the courts have started to listen to certain types of constitutional challenges. A SORA attorney must know how to set up these challenges.

Attorney Advertising: All content sponsored by The Law Office of Adam Bevelacqua, LLC. Although informational, this website may be considered attorney advertising. Every case has unique circumstances, and a person should consult a criminal attorney before taking any legal action.