People opposed a downward departure

This is a proceeding wherein the defendant challenges a determination of the Supreme Court, Kings County, designating him a risk level two sex offender pursuant to Correction Law article 6–C, the Sex Offender Registration Act upon the Supreme Court’s denial of his application for a downward departure to risk level one.

The criminal court concludes that the Supreme Court properly denied the defendant’s application and affirms the risk level designation.

In a multiple-count indictment, the defendant was charged with committing various sex crimes against a single complainant between December 2005 and March 2006, when the ages of the defendant and the complainant were 27 and 14, respectively. On 3 November 2006, pursuant to a negotiated disposition, the defendant pleaded guilty to one count of attempted rape in the second degree under Penal Law §§ 110, 130.30[1], sexual intercourse between a defendant 18 or older and a complainant younger than 15]. On 6 December 2006, he was sentenced as a second felony offender to an indeterminate term of imprisonment of 1 1/2 to 3 years.

On 24 March 2009, prior to the maximum expiration date on the defendant’s period of incarceration, the Board of Examiners of Sex Offenders prepared a Risk Assessment Instrument containing the Board’s recommendation to the Supreme Court regarding the defendant’s appropriate risk level designation under SORA. In the RAI, the Board assessed points under six risk factors, as follows: 25 points under risk factor 2 (“Sexual intercourse, deviate sexual intercourse or aggravated sexual abuse”); 20 points under risk factor 4 (“Continuing course of sexual misconduct”); 20 points under risk factor 5 (“Age of victim 11 through 16”); 30 points under risk factor 9 (“Prior violent felony”); 10 points under risk factor 10 (“Recency of prior offense-Less than three years”); and 10 points under risk factor 12 (“Not accepted responsibility”). The “Total Risk Factor Score” of 115 points placed the defendant at risk level three.

The applicable point ranges in the scoring system are: 0 to 70, level one (low); 75 to 105, level two (moderate); and 110 to 300, level three (high). The Board recommended a downward departure from risk level three to risk level two, noting that, despite the defendant’s criminal record, the instant offense was his only conviction for a sex offense and, although the victim was only 14 years of age, the acts were not the result of forcible compulsion.

At the SORA determination proceeding, the People submitted documentary evidence in support of the Board’s assessment of 115 points and contended that the defendant should be designated a risk level three sex offender; the People opposed a downward departure. The defendant disputed the assessment of 10 points under risk factor 12 in the RAI, contending that he had accepted responsibility for his actions.

In support of this contention, he relied upon certain statements he made to the police at the time of his arrest, a letter he wrote to the Board, a psychologist’s report, and a letter the complainant wrote to the defendant’s attorney. The defendant contended that, after subtracting the 10 points assessed under risk factor 12, the resulting score of 105 was within risk level two; he sought a downward departure from risk level two to risk level one based upon the alleged consensual nature of his relationship with the complainant.

The Supreme Court did not pass upon the merits of the dispute regarding the sufficiency of the evidence in support of the 10 points assessed under risk factor 12, but noted that, even if the 10 points were removed from the RAI, the resulting score of 105 points placed the defendant at risk level two, and the Board was not opposed to a risk level two designation. Accordingly, the Supreme Court designated the defendant a risk level two sex offender and, in effect, denied his application for a downward departure to risk level one.

The criminal defendant appeals contending that the Supreme Court failed to give him the benefit of the Board’s recommendation for a downward departure. He contends that his presumptive risk level after the subtraction of the disputed 10 points is risk level two and, thus, the Board’s recommendation for a downward departure should have been applied to depart downward from level two to level one. In addition, he advances other alleged mitigating factors to support a downward departure to level one, including the fact that he was convicted of an attempt only, the offense was “consensual” and statutory, and the violent felonies in his record did not involve “actual violence,” but were convictions for weapon possession.

At the initial determination proceeding, the district attorney bears the burden of proving the facts supporting the determinations sought by clear and convincing evidence. The Guidelines state that the Board or a court may not depart from the presumptive risk level unless there exists an aggravating or mitigating factor.

The court’s decisions in appeals reviewing orders which grant or deny departures from the presumptive risk level frequently include general reference to the clear and convincing evidence standard, without distinguishing between upward and downward departures. The language in some of the cases goes a step further to suggest that, not only must the ultimate determination be supported by clear and convincing evidence, but also, the proponent of a departure has the burden of adducing clear and convincing evidence of the facts in support of the aggravating or mitigating factor which is the threshold condition to the SORA court’s exercise of discretion.

With respect to upward departures, the threshold condition triggering the court’s exercise of discretion is twofold: (1) as a matter of law, the cited aggravating factor must tend to establish a higher likelihood of reoffense or danger to the community and be of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines, and (2) the People must prove the facts in support of the aggravating factor by clear and convincing evidence. Upon satisfaction of that threshold condition, the SORA court may, in its discretion, choose to upwardly depart or make no change. Where the threshold is not met, however, the SORA court may not upwardly depart and must impose the presumptive risk level. In the latter situation, the SORA court has no authority to exercise its discretion to depart upward because SORA requires the ultimate risk designation to be supported by clear and convincing evidence.

By contrast, the issue of downward departure is raised in a different context. Typically, the criminal sex offender makes the application for a downward departure at the initial determination proceeding and, in some cases, that application is supported by a recommendation of the Board. The application is made in the context of clear and convincing evidence supporting the point assessment in the RAI for the risk level from which the sex offender seeks a downward departure. It follows that, if the SORA court grants the request for the downward departure, the resulting lower designation is necessarily supported by clear and convincing evidence of a point total on the RAI within the range for the ultimate determination, as required by Correction Law § 168–n(3).

People v Sivells and People v Arotin held that a sex offender making an application for a downward departure bears the burden of establishing his or her entitlement to relief. The threshold condition to the SORA court’s exercise of discretion involves the twofold inquiry whether (1), as a matter of law, the cited mitigating factor tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines, and (2) the sex offender has established the facts in support of that mitigating factor. With regard to the second prong of this showing, the question remains whether the sex offender bears the burden of establishing the facts in support of the mitigating factor by clear and convincing evidence. The court finds no basis in SORA or the Guidelines for imposing that evidentiary burden.

The statutes governing the initial determination proceeding, while permitting the sex offender to present evidence, place the burden of proving the facts in support of the determination on the People, not the sex offender. A single provision of SORA, Correction Law § 168–o, places a burden of proof on the sex offender in the unrelated context of proceedings commenced by the sex offender subsequent to the initial risk level determination. Under subdivision (1) of that section, certain risk level two sex crimes offenders who have been registered for a minimum period of 30 years may file a petition for relief from further registration, and in such proceedings, the sex offender shall bear the burden of proving by clear and convincing evidence that his or her risk of repeat offense and threat to public safety is such that registration or verification is no longer necessary. Under subdivision (2) of that section, a sex offender may petition to modify his or her level of notification, and in such proceedings, the sex offender shall bear the burden of proving the facts supporting the requested modification by clear and convincing evidence as held in People v. McCollum. A modification petition “shall not be considered more than annually. A gun complicates things.

While SORA allows any sex offender to petition for modification, no relief is available to a risk level one sex offender, who is already classified in the lowest designation and has no statutory right to petition for complete relief from registration as in Matter of Attorney Gen. of the State of N.Y. v. Simon and Woe v. Spitzer. Subdivision (3) of Correction Law § 168–o affords the district attorney an opportunity, under certain circumstances, to petition for an upward modification of the final risk level designation, and in such proceedings, the district attorney bears the burden of proof by clear and convincing evidence akin to People v. Turpeau.

The clear and convincing evidence standard is an intermediate standard between the high standard of ‘beyond a reasonable doubt’ used in criminal proceedings and ‘fair preponderance ’ used in ordinary civil proceedings as held in Matter of New York City Dept. of Social Servs. v. Oscar C. and Santosky v. Kramer. This intermediate standard of proof has been deemed necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with a significant deprivation of liberty or stigma. In light of the stigma imposed by sex offender registration and notification, SORA appropriately places a burden on the district attorney to prove the facts in support of the ultimate risk level designation by clear and convincing.

Since there is no express mandate in SORA, the Guidelines, or the commentary for the imposition of a clear and convincing evidence burden upon the sex offender in the context of an application for a downward departure, the court holds that the preponderance standard used in ordinary civil proceedings is applicable to the sex offender’s initial factual burden of establishing the existence of an appropriate mitigating factor.

The court notes that the criminal sex offender meets this threshold condition by satisfying a twofold showing: (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence. At that point, the SORA court may exercise its discretion to grant or deny the departure application based upon an examination of all circumstances relevant to the offender’s risk of reoffense and danger to the community.

Contrary to the defendant’s contention, the mere fact that the Board recommended a downward departure to risk level two did not require the Supreme Court to grant a downward departure to risk level one. The Board’s recommendation to depart from risk level three to risk level two was premised upon the inclusion of the disputed 10 points.

The defendant’s effort to divorce the context of the recommendation from the recommendation itself has left him with the bare assertion that a court is obliged to honor the Board’s recommendation to depart irrespective of the reasoning that went into the recommendation. Although the factors cited by the Board in support of a recommendation to downwardly depart may be appropriate mitigating factors, the mere fact that the Board has made a recommendation to depart, in a vacuum, is not a mitigating factor warranting departure because it is not related to the defendant’s risk of reoffense or danger to the community.

The fact that the defendant was allowed to plead guilty to an attempt sex crimes notwithstanding this evidence of actual sexual contact is a result of the plea bargaining process, and it is proper to assess points on the RAI based on clear and convincing evidence of sexual contact even if the ultimate crime to which the defendant pleaded was an attempt crime akin to People v. Goodwin. Accordingly, the defendant’s conviction of attempted rape in the second degree is not an appropriate mitigating factor related to his danger to the community or risk of reoffense.

The defendant further contends that the Supreme Court should have departed downward because the offense was “consensual” and statutory. A relevant mitigating factor is expressly set forth in the Guidelines with regard to risk factor 2 (sexual intercourse), which provides that the Board or a court may choose to depart downward in an appropriate case and in those instances where (i) the victim’s lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points in this category results in an over-assessment of the offender’s risk to public safety. Notably, this mitigating factor has two components.

In the case at bar, the defendant established, by a preponderance of the evidence, that the first part of this mitigating factor applies to him by adducing evidence that the only reason for the complainant’s lack of consent was her legal inability to consent due to her age. However, the defendant failed to adduce any additional facts in support of the second prong of the factor to establish by a preponderance of the evidence that the scoring of 25 points under risk factor 2 resulted in the over-assessment of his risk to public safety.

It has been recognized that an over-assessment of risk to public safety may be shown with evidence of a combination of facts such as a minimal age difference between the defendant and the complainant and the absence of forcible compulsion akin to People v. Modica, People v. Herron, People v. Goossens and People v. Brewer.

Here, although there was no evidence of forcible compulsion, the defendant was 13 years older than the complainant, who was his cousin. The Board’s recommendation, which is based in part on the consensual nature of the crime, does not constitute additional evidence and, in any event, would only support a conclusion that the total point score for risk level three was an over-assessment of the defendant’s risk to public safety. The court finds that the additional materials submitted by the defendant did not provide evidence of an over-assessment under risk factor 2.

Further, the court finds that defendant failed to meet his burden of establishing the existence of this mitigating factor by a preponderance of the evidence in order to establish the threshold condition to the SORA court’s exercise of discretion.

Finally, the defendant contends in mitigation that his past convictions for weapons possession crimes did not involve “actual violence.” This contention is unpreserved for appellate review and, in any event, is without merit. Neither robbery or burglary was charged.

In sum, as a matter of law, all but one of the alleged mitigating factors cited by the defendant were not of a kind or to a degree otherwise not adequately taken into account by the Guidelines. With respect to the sole appropriate mitigating factor cited by the defendant, he failed to establish facts in support of its existence by a preponderance of the evidence. Thus, the defendant failed to establish the threshold condition for the Supreme Court’s exercise of discretion. Accordingly, a downward departure from presumptive risk level two to risk level one was not warranted, and the Supreme Court properly, in effect, denied the defendant’s application as was also held in People v. Brown, People v. Mendez and People v. Johnson.

The court affirms the judgment.

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