New York Criminal Lawyer Blog
A New York Sex Crimes Lawyer said that, on September 2, 2009 the defendant pled guilty to Sex Abuse in the Second Degree, sexual contact with an individual greater than 17 incapable of consent. The crime is a Class A misdemeanor. He was sentenced to time served and released without supervision on the same day of his plea/conviction. Thereafter, this SORA proceeding was commenced. The Cayuga County District Attorney’s office presented a risk assessment instrument (“RAI”), prepared by the New York State Board of Examiners of Sex Offenders (“the Board”) and based on the Board’s Risk Assessment Guidelines and Commentary, 2006 (“the Guidelines”). Under the RAI, the defendant was assessed 145 points on the 15–category instrument and, based on the accumulated points, classified as a Level 3 offender.
A New York Criminal Lawyer said that, the RAI was accompanied by a case summary, which was based on the “inmate’s file, which may include but is not limited to the pre-sentence investigation, prior criminal history and post-offence behavior.” The case summary alleges that the 32–year–old defendant was in a bar with a 25–year–old female. Neither person knew the other until the night of the sex crime. They met at a bar, drank, talked and then went to another bar. The case summary alleges that defendant was intoxicated but makes no mention of the condition of the victim. However, the victim “began to feel ill” and entered the ladies room. Later, the defendant entered that ladies room, held her hair and rubbed her back as she continued to vomit. The case summary alleges that he then fondled her breasts and “she repeatedly told him to stop” and then “he pinned her to the side of the toilet and stall wall, lifted her up and pulled down her pants and removed her tampon and then penetrated her vagina with his penis.” The case summary alleges that she was “screaming for him to stop” and “yelling for help.” After some time, two women came to her aid and “forced him to leave.”
A New York Rape Lawyer said that, the case summary also alleges that defendant, when later confronted by a DNA test, admitted that he touched the victim’s vagina with his penis, but, “noted that it was consensual.” It then makes reference to “some suggestion that the victim was drugged,” as a drug-facilitated sexual assault kit was administered and victim was noted to be “far more intoxicated than she should have been based on the number of drinks she had had.” Id. The defendant was indicted for Rape in the first degree and sexual abuse in the first degree and, according to the summary, “will be scored accordingly.”
The case summary then details the defendant’s criminal history. He was arrested in 1993, at age 16, for Burglary in the Second Degree, but there is no disposition noted in the case summary. There is a claim in the case summary that “he was placed on probation from February 1994 to February 1997 in both Tompkins and Cayuga Counties” but there is no proof before this Court of the reasons for probation or any conviction to sustain the sentence. The case summary also alleges that he was convicted of criminal mischief twice in 1995 and sentenced to probation for the second offense. Critically, he was charged—but never indicted—with Rape in the Second Degree in 1995 and eventually convicted of Sexual Misconduct in April 1998.
A New York Criminal Lawyer said that, after those convictions, the case summary alleges that the defendant was convicted in 1999 of Driving While Ability Impaired and in 2009 for Driving While Intoxicated and sentenced to 89 days incarceration.
In the hearing before this Court, defense counsel and district attorney argued over whether the government had provided clear and compelling evidence that: (1) forcible compulsion was used against this victim, (2) intercourse occurred during the crime, (3) the victim was “physically helpless” at the time of the crime, (4) the victim was a stranger to the defendant, and finally (5) whether the defendant’s prior convictions for alcohol-related driving offenses were sufficient to justify a finding of drug and alcohol abuse.
The issue in this case is whether defendant’s designation as Level 3 sex offender under New York’s Sex Offender Registration Act (“SORA”) is proper.
At a SORA hearing, the People bear the burden of establishing the factors supporting the proposed risk level by clear and convincing evidence. The clear and convincing standard acts requires a “high order of proof” and acts as a “weighty caution upon the minds of judges and forbids relief whenever the evidence is loose, equivocal or contradictory.” This Court must, before drawing any conclusions, find it “highly probable” that an alleged activity occurred.
The statute details that case summaries, prepared by the Board, and “reliable hearsay” can be considered by this Court in determining whether the government has met its burden of proof. Furthermore, facts proven at trial or at a plea are deemed established by clear and convincing evidence. The responsibility for the final assessment of factor values and the overall determination of a defendant’s sex crime offender level lies with the court. While recommendations of factor assessments by the Board may be helpful, this court is not constrained by those assertions.
In evaluating this case, this Court notes that the Guideline approach to predicting sexual offender recidivism has recently been critiqued as outdated and frozen in time. A brief examination of the scholarly support for the Guidelines lends credence to this criticism. The scholarly articles which underlie the RAI date from the mid–1980s to the mid–1990s. This lack of updated analysis raises a serious and on-going question regarding the weight to be assigned to the Board’s institutional role in defining and weighing, on a comparative basis, the various factors relevant to assessing the risk of re-offense by any individual defendant. As commanded by the Corrections Law, the Board in this case should perform an important task for the courts: an evaluation and recommendation of the critical and pertinent factors that most accurately predict a defendant’s risk of recidivism. In implementing this legislative scheme with respect to sex crimes offenders, the Board should perform an administrative task similar to role the federal sentencing commission providers for judges sentencing federal offenders: it should provide the scholarly justification for classifying certain offenders based on “empirical data and national experience, guided by a professional staff with appropriate expertise.”
In this case, for the reasons that follow, this Court questions whether the Board, in its translation of national experience data and empirical data to this particular case is entitled to the apparently substantial deference that the Correction Law accords. As a consequence, this Court is reluctant to rigidly adhere to the Guidelines and the commentary incorporated therein, as evidenced in the RAI and case summary presented in this case
First, this Court notes that the RAI before this Court does not appear to fully accord with the legislative directive for risk assessment analysis in the Correction Law. The statute specifically directs the Board to include in the assessment “whether psychological or psychiatric profiles indicate a risk of recidivism.” NY Correction Law § 168–l(5)(e). The statute also indicates that “the sex offender’s response to treatment,” shall be included in the Guidelines. NY Correction Law § 168–l(5)(f). Curiously, the Guidelines before this Court make no reference to either of these criteria. The Guidelines state that the Board “opted to create an objective assessment instrument that would provide a risk level combining risk of re-offense and danger posed by a sex offender” and “as required by the Act, the instrument includes factors relating to the offender’s current offense, his criminal history, his post-offense behavior and his planned release environment.” The Guidelines ignore subdivisions (e) and (f) and do not permit this Court to consider either of those factors in calculating this defendant’s risk of recidivism.
Second, there is an avalanche of new data—published after the Guidelines were promulgated—involving sex offenders and their recidivism rates in the wake of the enactment of sex offender registry laws nationwide. The New York State Division of Probation and Correctional Alternatives has published several bulletins which address the methods of calculating recidivism in this population. These studies, conducted by a coordinate branch of state government, contain scores of updated articles and analyses of the predictive tools and approaches to sex offender assessment, including updated articles on rape from authors whose earlier works are cited in the Guidelines.
Third, this Court understands that the validity of the Guidelines as a tool for determining sex crime offender recidivism is not before this Court. The defendant makes no such challenge and no New York court has determined that the RAI’s analysis or the Board’s Guidelines deprive a defendant of due process or any other statutory right. However, the state of scholarship in assessment of sex offenders, judicial concerns about the validity of assessment tools, the debate over the importance of clinical factors in evaluating recidivism risks, combined with the plethora of mistakes and omissions in the RAI in this case, caution this Court to intensively examine the facts and circumstances of this defendant before reaching any conclusions.
The mistakes in the case summary continue in the description of the defendant’s criminal history. Critically, the summary indicates that defendant was convicted of Sexual Misconduct in April 1998 and was sentenced to five years’ probation. The Court conducted its own review to determine the accuracy of the criminal history. A criminal history report from the New York State Division of Criminal Justice (“NSIS”) and further investigation confirmed that the defendant, although charged with robbery in 1995, pled guilty to Sexual Misconduct in 1998, three years later. However, even those facts appear to be challenged by other documents. A certified conviction from the Tompkins County Clerk’s Office indicates that the defendant pled guilty to Criminal Mischief with intent to cause property damage in the Town of Brutus in 1995 and was sentenced to three years’ probation.
Based on the extensive mistakes and misstatements in the case summary, this Court declines to accord any significant weight to these hearsay assertions in resolving the issues under SORA that are currently before the Court. This Court can credit “reliable hearsay,” but, when evaluated in its entirety, the allegations in the case summary do not meet that test. The numerous errors and omissions cast substantial doubt on the reliability of any allegations in the case summary. The Court, therefore, declines to accord any weight to the case summary and instead. Will examine the entire record in this case for clear and convincing evidence that the factors alleged in the RAI are justified.
The Court concludes that there is no clear and convincing evidence that the defendant used forcible compulsion, that the victim was physically helpless at the time of the crime, or that the victim was a stranger. As a result, 50 points must be subtracted from the assessment under the RAI presented to the Court. Therefore, the defendant is rated a 95 score, which classifies him as Level 2 offender. The Court also determines that the defendant is a predicate sex offender, as the defendant was convicted of burglary set forth in Correction Law after previously being convicted of a similar offense.
Finally, there are no facts, presented to this Court which constitute clear and convincing evidence for any departure from the defendant’s presumptive risk level as established by the Court. The Court, in analyzing the various factors, has used the clear and convincing standard to assess the people’s classification on each criteria and, as indicated, found it to be wanting in several areas. Having modified the scores in these areas, the Court cannot find clear and convincing evidence to justify any further departure.
If you are a victim of rape, seek the representation of a New York Sex Crime Attorney and New York Criminal Attorney at Stephen Bilkis and Associates. Call us for free legal advice.