Defendant was arrested for acting in concert with another in allegedly committing the crimes of Kidnapping in the First Degree (Penal Law § 135.25 [1]), Rape in the First Degree (Penal Law § 130.35 [1]), Sodomy in the First Degree (Penal Law § 130.50 [1]), and Unlawful Imprisonment in the First Degree (Penal Law § 135.10), against the victim on May 3, 2000, in the vicinity of East 233rd Street and White Plains Road in Bronx County. Defendant and co-defendants were subsequently indicted for all of the above charges. In the felony complaint, it was alleged that the Defendants detained the victim in a car and refused to let her leave when she requested to do so. Further, when she attempted to get out, she was pulled back inside and her mouth covered when she tried to scream for help. The defendants then held the victim down while Defendant inserted his penis into her vagina and Scott inserted his penis into her mouth, both without her consent. At the time of his arrest, when told that he was being charged with rape, Defendant responded, “I kind of had that feeling.” He was subsequently identified by both the victim and an eyewitness in separate corporeal lineups.
A Bronx Criminal Lawyer said that, in the course of the Grand Jury presentation, it was established that the victim was with a friend. The friend knew Defendant and talked to him while the victim was standing close by. The victim and friend got into the back seat of the vehicle. When the friend got out purchasing some cigarettes or marijuana, Defendant drove off with the victim. The victim called to the friend for help. However, the defendant pulled her back into the car. Defendant proceeded to drive to a parking lot. He then got into the back seat, grabbed the victim’s thigh and demanded that she place his penis into her mouth. Thereafter, Defendant removed the victim’s pants, held her hands down, and engaged in sexual intercourse (rape) with her against her will. The defendant then inserted his pturbated into her mouth while Defendant held her hands down as she was repeatedly shouting, “No.” Scott then struck the victim in the mouth. Afterwards, the victim was driven to within one block of her home and forcibly thrown out of the car.
DNA tests performed on the victim and Defendant revealed that his semen and that of another male were found on a vaginal swab of the victim as well as on her panties.
A Bronx Criminal Lawyer said that, defendant pled guilty to the lesser included offense of Attempted Sexual Abuse in the First Degree. He received a sentence of an indeterminate term of imprisonment of from one and one-third to four years. In the course of his allocution, the People stated that if this matter had gone to trial, “the People would have proven that on May 3rd of the year 2000, this defendant did, by forcible compulsion, force the complainant in the case, the victim, to have sexual intercourse with him. Defendant then admitted under oath, “I had sex with her without her consent”.
A Bronx Criminal Lawyer said that, in preparation for his sentencing, Defendant was interviewed by the Department of Probation for a Pre-sentence Report. The report noted that, Defendant admitted his guilt, showing no remorse. The Defendant stated that he had sex with his ex-girlfriend. It further noted that this crime is evidence of the Defendant’s sexually deviant and aggressive behavior and that Defendant appears in need of a counseling program to determine the reason for his actions. Defendant also acknowledged that he has been using alcohol since age nineteen; however, he claimed that he does not abuse it.
A Bronx Criminal Lawyer said that, the Board of Examiners of Sex Offenders submitted a Risk Assessment Instrument. It recommends designating Defendant as a Sexually Violent Offender based on his conviction for Attempted Sexual Abuse in the First Degree. It also recommends classifying Defendant as a Risk Level 2 based on an assessed score of 95. Specifically, the Board assessed: 10 points for use of forcible compulsion; 25 points for sexual intercourse, deviate sexual intercourse or aggravated sexual abuse with the victim; 20 points for being either a stranger to the victim or having a relationship established for the purpose of victimizing or a professional relationship; 5 points for a criminal history with no sex crimes or felonies; 15 points for a history of drug crimes or alcohol abuse; and 20 points for unsatisfactory conduct while confined or supervised including sexual misconduct (sex crimes).
Defendant argues at a risk assessment hearing that this designation is incorrect, that it should actually be a lower Risk Level 1. Specifically, he contends that the Board erred in adding 25 points for his engaging in sexual intercourse, deviate sexual intercourse, or aggravated sexual abuse with the victim. Defendant contends that because he was convicted of an attempt, he is not guilty of any of the abovementioned overt acts. Therefore, he should have received zero points under the factor “sexual contact with victim,” which would bring his total score to 70, rather than the 95 presumptive points assigned him.
The issue in this case is whether the Board erred in their recommendation designating defendant Wiggins as a Risk Level 2 Sexually Violent Offender upon his release from custody.
In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program, commonly known as “Megan’s Law.” This Act called for the Attorney General to establish guidelines that required each state to establish a program for persons convicted of a sexually violent offense to register with an appropriate state agency. As a result of this Federal mandate, in 1995, the New York State Legislature enacted Article 6-C of the Correction Law: The Sexual Offender Registration Act (SORA).
Pursuant to SORA, the Board developed guidelines and procedures to assess the risk of a repeat offense by a sex offender and the threat that person posed to the public safety. Based on these factors, the Board recommends to the sentencing court whether a defendant warrants the designation as a sexual predator, sexually violent offender, or predicate sex offender as defined in Correct Law § 168-a (7), as well as which of three levels of notification the defendant should be assigned based upon “the risk of a repeat offense.” The offender’s risk level determines the amount of information that can be disseminated about him to the public under the Act’s notification procedures and the threat posed by a sex offender depends upon two factors: (i) the offender’s likelihood of re-offense and (ii) the harm that would be inflicted if he did reoffend.
The two risk assessments levels that are pertinent to the case at bar are:
(a) If the risk of repeat offense is low, a level one designation shall be given to such sex offender. In such case the law enforcement agency or agencies having jurisdiction and the law enforcement agency or agencies having had jurisdiction at the time of his or her conviction shall be notified pursuant to this article. (b) If the risk of repeat offense is moderate, a level two designation shall be given to such sex offender. In such case the law enforcement agency or agencies having jurisdiction and the law enforcement agency or agencies that have had jurisdiction at the time of his or her conviction shall be notified and may disseminate relevant information which shall include a photograph and description of the offender and which may include the name of the sex offender, approximate address based on sex offender’s zip code, background information including the offender’s crime of conviction, modus of operation, type of victim targeted, the name and address of any institution of higher education at which the sex offender is enrolled, attends, is employed or resides and the description of special conditions imposed on the offender to any entity with vulnerable populations related to the nature of the offense committed by such sex offender. Any entity receiving information on a sex offender may disclose or further disseminate such information at its discretion.
In determining the risk level, the Board has promulgated fifteen factors that are divided into four categories. These guidelines are based on an individualized approach that is mandated by Federal statute, and they are designed to “eschew per se rules so that risk should be assessed on the basis of a review of all pertinent factors”. Under each factor, “the court should look to the most serious wrongdoing in each category”, and only one of the options is chosen if any are applicable. If the aggregate score from all of these factors is 70 points or less, the offender is presumptively a risk level one. If it is more than 70 but less than 110, he is presumptively a risk level two.
Under SORA, a Sexually Violent Offender is any sex offender convicted of a sexually violent offense, which includes a conviction for Attempted Sexual Abuse in the First Degree. Therefore, Defendant, who has been convicted of this crime, has properly been categorized as a Sexually Violent Offender.
Likewise, defendant was properly classified as a level-two sex offender. This classification “was supported by clear and convincing evidence, based on the facts contained in the Board’s Case Summary and Risk Assessment Instrument.”
This Court notes that Defendant’s reliance on Maldin, is misplaced. In that case, the court, as here, relied upon the victim’s statements to police as contained in the Pre-Sentence Report and not just the final charge. These statements indicated that the defendant engaged in multiple acts of sexual misconduct with the victim, but only attempted to engage in deviate sexual intercourse. The Third Department held that the guidelines were misapplied by adding points for engaging in deviate sexual intercourse since the “deviate sexual intercourse contemplates commission of specific sexual acts rather than attempted commission of those acts as occurred here.” By contrast, here, when reviewing the victim’s statements, and not just the final charge, it is clear that there were completed acts of sexual intercourse by Defendant and that he also acted in concert in allowing deviate sexual intercourse to be completed against the victim. His argument as to the 25 points being misappropriated to him thus fails.
By virtue of his conviction, the Court finds Defendant a Sexually Violent Offender. Additionally, Defendant is appropriately classified as a Risk Level 2. The felony complaint, Grand Jury testimony, victim’s statement and Pre-sentence Report all establish by clear and convincing evidence that Defendant used forcible compulsion (10 points), had sexual intercourse with the victim and acted in concert with co-defendant Scott in having deviate sexual intercourse with her (25 points), and that the Defendant and victim were strangers (20 points). Indeed, Defendant acknowledged in his sworn guilty plea and statement in the Pre-Sentence Report that he engaged in sexual intercourse with the victim against her will. The fact that Defendant pled to a lesser included offense is of no consequence. Although Defendant claims that he and the victim knew each other, the self-serving statement does not overcome the clear and convincing evidence that he and the victim were strangers as established.
In addition, Defendant’s rap sheet indicates that he has a prior misdemeanor conviction (5 points), which he does not contest. Likewise, the Case Summary indicates that Defendant has admitted to abusing alcohol on the night of the incident and to completing a substance abuse program for his addiction (15 points).
Moreover, the Case Summary also indicates Defendant had disciplinary problems while in custody, including an act of sexual misconduct (20 points). Specifically, “during a visit with his wife and mother, [he] was observed with his hand `in between his wife’s legs, outside of clothing, rubbing her crotch vigorously.’ He also was placed in Protective Custody in May 2003 after being slashed on his face for gang activity, i.e., `unauthorized organization activity'”. Therefore, Defendant was appropriately assessed a total of 95 points and classified as a Risk Level 2, and the Court so finds.
Thus, the Court ordered, that Defendant is hereby adjudicated a Risk Level 2 Sexually Violent Offender.
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