This matter is before the court for a judicial determination of defendant’s duration of registration and level of notification pursuant to the Sex Offender Registration Act (SORA), based on his June 9, 1999 plea of guilty to one count of course of sexual conduct against a child in the first degree and one count of sodomy in the first degree. On October 4, 2005, this court received a risk assessment recommendation from the Board of Examiners of Sex Offenders pursuant to Correction Law § 168-l (6), recommending that defendant be designated a level three sex crimes offender.
On November 3, 2005, this court held a hearing pursuant to Correction Law § 168-n (3). At the conclusion of the hearing, the court was required to designate defendant a “sexually violent offender”, as the crimes of which the defendant stands convicted are both designated as “sexually violent offenses” requiring lifetime registration. This court also rendered a determination designating defendant a level one sex crime offender. This written opinion further explains this court’s findings of fact and conclusions of law as set forth in its oral ruling, in conformity with Correction Law § 168-n (3).
A New York Rape Lawyer said that, the instant charges arose from incidents commencing in February 1995, when defendant was 13 years old and the victim was 4 years old, and continuing through March 31, 1998, when defendant was 17 years old and the victim was 7 years old. During those years, the victim’s mother regularly brought the younger child to defendant’s home for babysitting by defendant’s mother. The conduct at issue occurred when defendant’s mother left the victim in defendant’s sole care while she left the home to run errands. No gun was involved.
A New York Criminal Lawyer said that, defendant was arrested on the instant charges on April 21, 1998. The case was originally assigned to Family Court but was transferred to Supreme Court in May 1998. Following plea negotiations in another part of this court, in which the court discussed a youthful offender disposition involving a sentence of six months’ incarceration concurrent with five years’ probation, the case was sent to this part for a hearing pursuant to CPL article 65 (“Use of Closed-Circuit Television for Certain Child Witnesses”). On June 9, 1999, prior to receiving this court’s ruling on matters relating to the article 65 hearing, defendant entered a guilty plea to the entire indictment. In consideration of defendant’s guilty plea, the court promised only to consider the possibility of substituting a youthful offender finding at the time of sentence. Defendant was then certified as a sex crime offender, pursuant to Correction Law § 168-d.
A Sex Crime Criminal Lawyer said that, subsequently, six different clinical and forensic examiners advised the court that their examinations indicated that defendant had been sexually molested by a family friend while an adolescent. Additionally, evaluation at defendant’s sex offender treatment clinic, the New York Psychiatric Institute Sexual Behavior Clinic (NYPI), revealed that on psychometric testing, defendant did not endorse any sexual interest in children. The forensic social workers and psychiatrist at the Supreme Court’s forensic clinic opined that defendant’s conduct appeared to have been related to his own experience as a victim of sexual abuse, rather than to a pattern of sexual attraction to young boys. These clinicians recommended that defendant continue with treatment, to which he had responded well. After evaluating those reports and reviewing defendant’s character references, the supervising probation officer recommended that defendant, as a first offender, be granted youth offender status and that a sentence of probation be imposed, requiring defendant to continue individual psychotherapy and sexual therapy.
A New York Criminal Lawyer said that, on December 17, 1999, this court orally ruled that prior sex abuse suffered by defendant constituted a mitigating circumstance which bore directly on the manner in which the crimes had been committed within the meaning of CPL 720.10 (3) (i), justifying the vacation of defendant’s criminal convictions and his adjudication as a youthful offender. The court then vacated defendant’s convictions on counts one, four and six, and adjudicated him a youthful offender on each pursuant to CPL 720.20. Defendant was sentenced to five-year probationary terms on counts one and four, and to a three-year probationary sentence on count six, all to run concurrently. This court also vacated the prior certification of defendant as a sex crimes offender. With respect to counts two, three and five, the court, after a modified dispositional proceeding, found defendant a juvenile delinquent, and sentenced him to two concurrent probationary terms of two years.
Notwithstanding their pre-plea representation to counsel and the court, the People appealed the youthful offender adjudication and sentence. On May 8, 2001, the Appellate Division held that as a matter of law, that the prior sexual abuse suffered by the defendant did not constitute a mitigating circumstance within the meaning of CPL 720.10 (3) (i), and remitted the case to this court for resentencing. Marijuana was not a factor.
Upon remittitur of the case by the Appellate Division, defendant chose not to withdraw his previously entered plea, and was resentenced on December 5, 2001, in accordance with the Appellate Division’s decision and with the consent of the People, as a first felony offender to concurrent indeterminate prison terms of 3 to 6 years on counts one and four, and to a concurrent one-year jail sentence on count six. The SORA certification was also reinstated. On October 4, 2005 the court received the Board’s risk assessment recommendation, along with notice that defendant was scheduled for conditional release from incarceration on December 3, 2005.
The issue in this case is whether the Board of Examiners of Sex Offenders pursuant to Correction Law § 168-l (6), erred in recommending that defendant be designated a level three sex crime offender.
Pursuant to SORA, this court conducted a hearing on November 3, 2005, at which the State was represented by the Office of the New York County District Attorney, and the defendant, who waived his presence at the hearing, was represented by his assigned counsel. At the hearing, this court reviewed the recommendations of the Board and the factors on which it was based, as set forth in its risk assessment instrument and case summary furnished to the court and parties; the court file in the case, including all prior proceedings and decisions of this court and the submissions on which they were based, including this court’s factual determinations set forth in the transcripts of the plea and both sentencing proceedings; the victim impact statement; evaluative reports from the Department of Probation; clinical evaluations from defendant’s psychological and behavioral counselors; defendant’s criminal history; defendant’s inmate programmatic and disciplinary history; and the arguments of the parties advanced at the hearing. The prosecution was required to bear the burden of proving the facts supporting its proposed determinations by clear and convincing evidence.
This court is required to make a determination of the duration of defendant’s registration obligation. Defendant stands convicted of course of sexual conduct against a child in the first degree and sodomy in the first degree. Both crimes are defined as “sexually violent offenses”. The parties agree, and the court concurs, that the fact of such convictions requires the court to designate defendant as a “sexually violent offender,” as that term is defined in Correction Law § 168-a (7) (b). He is therefore subject to lifetime registration.
In assessing threats of domestic violence, the court must determine what a victim, faced with the threat, feared would occur if he refused to comply with the demands of the offender. The facts here indicate that the defendant threatened to kill the victim with a toy gun and to throw him out of a window if he reported the incidents. The court finds that these threats were sufficient to place the victim, then aged four to seven years, in fear that he would be injured or killed if he did not acquiesce in the defendant’s conduct. The victim is found to have been compelled, through the threat of force, to suffer the sexual misconduct of the defendant. Nonetheless, defendant was never in fact armed with any dangerous instrument or weapon, nor did he inflict physical injury on the victim.
The parties agree that the defendant used forcible compulsion and that 10 points should be assessed for this factor. The defendant was convicted, upon his plea, to sodomy in the first degree, which involved physical contact between the defendant’s penis and the mouth of the victim who was less than 11 years old. The parties agree that 25 points should be assessed for this factor. There was a single victim in this case. The parties therefore agree that no points should be assessed for this factor. Defendant engaged in a continuing course of sexual misconduct, from the time the defendant and victim were 13 and 4 years old, respectively, until they were 17 and 7 years old. The parties therefore agree that 20 points should be assessed for this factor. (20 points.) The victim of this case was six to seven years old at the time of the commission of the crimes at issue at this hearing. The parties agree that 30 points should be assessed for this factor. (30 points.) The victim did not suffer from a mental disability or incapacity or from physical helplessness. The parties agree that no points should be assessed for this factor. (0 points.) The parties agree that defendant and the victim were known to each other. Therefore, no points are assessed for this factor. (0 points.)
The record in this case does not support a finding that defendant has had a history of substance abuse, under either of these definitions of the term. In fact, the only datum upon which the Board could have based such a finding appears to be the statement contained in the New York City Department of Probation presentence investigation report of November 29, 2001 that “in the last PSI Report, the defendant did indicate that he did have a history of using marijuana and alcohol.” The previous presentence investigation report prepared on July 16, 1999, however, makes no mention of any use of substances by defendant. Examination of the original pre-pleading investigation report in the case reveals the following statement by the same supervising probation officer who conducted the July 16, 1999 interview: “The defendant has no drug history except for light usage of alcohol.”
The findings of the other examiners on this issue are consistent with this last statement. Credentialed Social Worker, who examined defendant at the Supreme Court’s Forensic Psychiatry Clinic on July 2, 1999, stated: “He denied the use of drugs, and stated he drinks a little alcohol at parties.
Furthermore, as previously noted, defendant had undergone years of psychotherapy and counseling prior to his incarceration, with regular reports on his progress being made to the court and others. At no time was it ever reported that any of the clinicians perceived a pattern or history consistent with substance abuse, as opposed to mere social use. The People offer no evidence to the contrary.
Finally, the New York State Department of Correctional Services has confirmed defendant’s claim that upon evaluating defendant for placement in appropriate treatment programs while incarcerated it found no need to refer him to any substance abuse treatment programs.
Accordingly, the court held that defendant is a sexually violent offender, which requires lifetime registration. This court further finds that clear and convincing evidence has established that defendant is a presumptive level two sex offender, but that defendant has adequately provided clear and convincing evidence of mitigating factors not adequately considered by the Guidelines which warrant a downward departure to a level one determination.
If you want to question your SORA risk level designation seek the help of a New York Criminal Attorney and New York Rape Attorney at Stephen Bilkis and Associates. Call us for free legal advice.