In People v. Ferrer (1st Dept. 1/26/2010), the First Department unanimously rejected a challenge to the SORA Risk Assessment Instrument. The defendant introduced the testimony of an expert witness, who contended that the RAI is unreliable and is not a scientifically accepted predictor of future dangerousness. The expert testified that a different instrument, the STATIC-99, is more reliable. The defendant presented evidence that he is a lower risk under the STATIC-99 than under the RAI.
Nevertheless, the court rejected the defendant's challenge because he failed to demonstrate that the RAI is unconstitutional. The court noted that, after a SORA hearing, a court may depart downward from the RAI score in its discretion. The RAI is thus merely presumptive. "Here, the hearing court's decision indicates that it weighed the RAI
against the defense evidence and arguments, and that it properly
concluded that defendant had a moderate risk of reoffense, so that a
level two assessment was appropriate." (LC)