Sometime in August 1998, the defendant was released from state prison after serving a three year sentence following his conviction on October 25, 1995 to sexual abuse in the first degree. The defendant, who was a Cadet Leader of an eight year old boy, pled guilty to fondling the boy’s penis while staying overnight at the boy’s home. The court must now make a risk assessment determination pursuant to the Sex Offender Registration Act (SORA).
A Nassau County Criminal lawyer said that the Board of Examiners of Sex Offenders has recommended to the court that the defendant be assessed a risk level two. This recommendation was based on the Board’s use of its objective risk assessment instrument which assigns a numerical value to the existence of certain risk factors and totals the numerical points to arrive at the offender’s presumptive risk level. The Board found that the defendant’s total risk factor score was 100 points. This score, being more than 70 points but less than 110 points, falls within the numerical parameters set forth for a presumptive risk level two category. A level two designation indicates that the risk of repeat offense is moderate.
After receiving a risk assessment recommendation from the Board, the sentencing court must make a final judicial determination with respect to the level of notification. The phrase “sentencing court” is not defined within the Act. Other States have held that the phrase “sentencing court” refers to the forum that had jurisdiction over the case, as opposed to the specific judge. Although this State has not set forth a definition in statute or case law for the phrase “sentencing court,” it has been held that a judge is not “the court” as a “court” is defined as an organized body with defined powers, meeting at certain times and places for the hearing and decisions of causes and other matters brought before it
A sex offender need not be classified by the particular judge who sentenced that sex offender. However, the judge who personally presided over a sex offense case and sentenced the sex offender is usually in the best position to evaluate the potential danger posed by the defendant, and accordingly determine what is the proper level of notification owing to the public. This thirty-seven year old sex offender is a psychiatrically diagnosed and self-described pedophile. In 1995, recognizing the serious threat the defendant posed, this court ultimately rejected the original plea agreement negotiated between the prosecution and the defendant which sought a sentence of probation, coupled with the imposition of certain conditions. This court sentenced the defendant to an indeterminate state prison sentence of one to three years.
The defendant seeks a downward departure from the presumptive risk level two to a risk level one. The defendant and defense counsel appeared for a hearing. The Bronx District Attorney’s Office declined to appear indicating that it routinely takes no position with regard to sex offender classifications. The State Attorney General’s Office was notified, but did not appear. No one has moved on behalf of the State for an upward departure from the level two recommendation of the Board.
Due process mandates that the State must bear the burden of proof to support its proposed risk level assessment by clear and convincing evidence. However, even where departure from the calculated presumptive risk level is not requested, it is still appropriate for the court to independently consider whether a departure from the recommendation is warranted. The board serves only in an advisory capacity similar to the role served by a probation department in submitting a sentencing recommendation. The court is not bound by the recommendation of the board and, in the exercise of its discretion, may depart from the recommendation and determine the sex offender’s risk level based upon the facts and circumstances that appear in the record.
An upward or downward departure from the presumptive risk level is warranted where there is clear and convincing evidence of the existence of an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines. The court should consider departure from the presumptive risk level where either the state or the defendant seeks an upward or downward departure and offers clear and convincing evidence to support departure. The court should sua sponte depart from the presumptive risk level when it is clearly evident from the record before the court that special circumstances warrant departure.
An objective risk assessment instrument, no matter how well designed, will not fully capture the nuances of every case. In this case, the Board’s presumptive risk level calculations resulted in an under-assessment of this sex offender’s risk to the public safety. Firstly, in allocating points to the defendant with respect to the current offense, the Board chose not to assess any points for more than one victim. The existence of multiple victims of sexual contact is indicative of compulsive behavior, and is therefore a significant factor in assessing the offender’s risk of re-offense. The Board did not assess any points for the defendant kissing a four year old boy in the mouth. However, the defendant’s conduct in this regard constitutes “sexual contact” within the meaning of the statute defining first degree sexual abuse. In determining risk assessment under the Guidelines, sexual contact includes intimate touching or kissing for the purpose of sexual gratification.
The Board also did not assess any points against the defendant for his non-acceptance of responsibility. A guilty plea may provide some evidence of a defendant’s acceptance of responsibility. However, it does not, by itself, constitute a sincere acknowledgment of personal culpability
In this case, the Board noted that the defendant admitted his guilt. He stated he fondled the victim for pleasure, but at times indicated that he remembers nothing about the instant offense or his criminal history as a result of a severe beating he received in retaliation for his crime. At the time of sentence in 1995, defendant’s psychiatrist noted that, “although [the defendant] does not remember any pedophilic acts on his part, he personally accepts responsibility for his actions and says that if he was accused of these actions that he did them.” A second examining psychiatrist noted that the defendant stated he “rubbed this little boy’s penis.” But later, when confronted with both his admission of guilt to the Probation Department and his claims of lack of memory, he stated, “that is my thing touching boys so I must have done it.” An individual cannot accept responsibility for committing a crime while at the same time denying memory of his criminal conduct.
The Guidelines themselves stress that both the Board and the court should examine the offender’s most recent credible statements and should seek evidence of genuine acceptance of responsibility. Here, there is no such genuine acceptance of responsibility. Quite notably the defendant’s letters are after he completed the prison’s mandatory sexual treatment program. While neither admitting nor denying his latest offense, he nonetheless expressed his willingness to continue participating in the sex offender treatment program saying “better safe than sorry” and “just in case.”
An acknowledgment of responsibility is critical to the treatment of sex offenders as an offender’s ability to identify and modify the thoughts and behavior that are proximal to his sexual misconduct is often a prerequisite to stopping the misconduct. Therefore, this sex offender’s denial of responsibility is evidence that he has not benefitted from the program and evidence that his deviant sexual conduct remains unaffected, and thus undeterred. As the Guidelines point out, an offender who does not accept responsibility for his conduct is a poor prospect for rehabilitation.
The court further finds that, although the defendant received the maximum amount of points with respect to the number and nature of his prior crimes, the objective risk assessment instrument itself cannot adequately take into consideration this pedophile’s criminal history. Prior to his latest offense, the defendant was arrested, in 1987, for criminal impersonation of a police officer and endangering the welfare of a child. The defendant approached two boys, identified himself as a police officer and displayed a badge. A police officer, who observed the defendant’s actions, intervened believing that the defendant was attempting to seduce or solicit the boys. The defendant pled guilty and received three years probation. In 1985, the defendant was also arrested for criminal impersonation and criminal trespass. In that case, the defendant dressed up in a Fire Marshall’s uniform and went into two public elementary schools posing as a Fire Marshall. He was sentenced to 60 days in jail.
This sex offender has repeatedly attempted to foster relationships with children for the purpose of seduction. He has a pattern of impersonating police officers and firefighters for the purpose of gaining access to children. Children are taught from an early age to trust these public servants and to seek their assistance when in need of aid. The defendant’s brazen conduct not only demonstrates the defendant’s cunningness to lure young, naive boys into perilous situations, but it also demonstrates that his paramount objective is to prey on the young. Those who frequently victimize children develop complicated techniques for obtaining access to children. Offenders who target young children as their victims are more likely to re-offend. The fact that his criminal impersonations were discovered prior to any completed sexual acts, does not affect the significance of the history of the defendant’s criminal behavior. An offender who intended to engage in sexual activity with his victim but is prevented from doing so by some factor other than his own change of mind, such as police intervention, still poses a serious threat to the community.
The presentence report quoted the victim’s mother as saying that the defendant acted like a father to her child. The mother recognized that the defendant had “conned” her and indicated that she wished the defendant would “not be set free to continue destroying children’s lives.” A person with whom a relationship has been established or promoted for the primary purpose of victimization presents a heightened concern for public safety and need for community notification.
The defendant’s own psychiatrist, as well as the psychiatrist who conducted the defendant’s presentence treatment evaluation, have diagnosed him as suffering from “pedophilia, non exclusive, with sexual attraction to males.” The Guidelines provide that a clinical assessment that the offender has a psychological, physical or organic abnormality that decreases his ability to control impulsive sexual behavior is itself an overriding factor automatically resulting in a presumptive risk assessment of level 3. The defendant’s pedophilic interests have existed for approximately twenty years, and his criminal history, which appears to be related solely to his pedophilic impulses, spans a 13 year period. This court has no confidence that this sex offender merely poses a moderate risk to the public as the Board concluded, and certainly not a low risk as the defendant contends. This sex offender poses a very serious threat to children. As the presentence report aptly pointed out in 1995:
The instant offense is consistent with this defendant’s escalating pattern of anti-social criminal behavior. His criminal history dates back to 1984 and has continued unabated by prior court imposed probation or correctional sanctions. A probation failure, he remains undeterred and a serious threat to children. The defendant is fully culpable for his behavior. He did not express any remorse or concern for the eight year old victim he traumatized, by sexually deviant acts herein. Having failed to derive sustaining benefit from years of previous psychiatric intervention and treatment the outlook for this immature and non-insightful personality is necessarily pessimistic.
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