On 5 March 1993, defendant was arrested, and charged with Rape in the First Degree, Sex Abuse in the First Degree, and Endangering the Welfare of a Child based upon the complaint of child-one, a ten-year old who stated that defendant had removed her clothing, spread her legs, and placed his penis inside her vagina. He later gave her five dollars to keep secret what had happened. The Sex Abuse charge was dismissed upon a technical error in the Grand Jury presentation.
Defendant was also charged in the same indictment with endangering the welfare of child-two, a 15-year old, photographed by defendant, both with her consent and surreptitiously, in her underwear following her refusal of defendant’s requests for sexual contact. A New York DWI Lawyer said there was no admission to the accusation although the minutes of the child’s Grand Jury testimony and one of the photographs submitted by the District Attorney do provide the necessary clear and convincing evidence that such incident took place.
On 6 April 1994, defendant pled guilty to Attempted Rape in the First Degree with respect to the allegations concerning child-one.
Notably, defendant is 58 years old and a live-in friend of child-one’s grandmother with whom both child-one and child-two also resided; A New York DWI Lawyer said the defendant admitted he had had sex with child-one and knew that she was under eleven.
On 18 April 1994, defendant was sentenced to one and a half to four and a half years of incarceration. Defendant was released from prison on 1 March 1996.
Defendant is a convicted sex offender pursuant to Correction Law having pled guilty on 6 April 1994 to one count of Attempted Rape in the First Degree, a lesser-included crime of Count I of the Indictment charging Rape in the First Degree, commonly known as statutory rape. All other charges in the Indictment (one count of Sexual Abuse in the First Degree and 2 counts of Endangering the Welfare of a Minor) are also based upon the age of the victim. There are no allegations of forcible compulsion per se. A Nassau County DWI Lawyer said the defendant has challenged his proposed “moderate” risk level designation under the Sex Offender Registration Act as not consistent with the facts of his case and his due process rights.
On 12 May 1997, defendant appeared in response to notice and was appointed counsel. Challenging his recommended assessment at risk level 2, pursuant to Correction Law, on 25 August 1997, defendant requested a hearing. A full hearing was held on 17 December 1997.
At the hearing, the State offered the Risk Assessment Instrument for defendant, the testimony of a Board-member who prepared the Assessment Instrument, the Case Summary provided to the Court and, from the District Attorney, the Grand Jury minutes containing the testimony of the alleged second victim together with photocopies of some photographs, and defendant’s allocution of 6 April 1994, in which he acknowledged he had sex with child-one knowing that she was under eleven. Defendant submitted the Board’s Risk Assessment Guidelines in effect at the time of defendant’s evaluation, dated January 1996 (since amended), the Case Summary and attached Probation Pre-Sentence Report and Defendant’s Case History from the Division of Criminal Justice Services which was also used in his Board evaluation and which erroneously listed rape charges with forcible compulsion for the crimes at issue.
Pursuant to the mandate of Correction Law, the Board developed a Risk Assessment Instrument (“Instrument”) attributing points to be allocated to the various statutory factors in determining the risk of recidivism posed by any particular offender. For defendant, the Instrument presented at the hearing allocates a total of eighty-five points as follows: 10 points for use of forcible compulsion; 25 points for sexual intercourse, deviate intercourse, or aggravated sexual abuse (not statutory rape); 20 points for two victims; and 30 points for a victim who is under 10 years of age. Defendant had no criminal history and received no additional points for Past Offense Behavior or Release Environment. No points were added under Factor 14, Supervision Following Release, because, at the time, defendant was to be supervised by a parole officer with expertise in handling sex offenders. Release without supervision warrants the addition of 15 points. Since defendant is no longer under supervision, the District Attorney has suggested that 15 points should be added to defendant’s recommended risk factor score of 85. His Board-recommended Presumptive Risk Level is 2, moderate. There is no indication on the Instrument suggesting override or departure from the level recommended based upon the numerical scoring. Scores between 0 and 70 points indicate low risk, 75 to 105 points represent moderate risk, and 110 to 130 points is high risk.
Defendant takes issue with the allocation of ten points for forcible compulsion, noting that the charges were based exclusively on the age of the victim and contain no allegations of force. He also challenges the allocation of 20 points for two victims, noting that only the charge of Endangering the Welfare of a Minor relates to a separate victim, for which there was no admission or conviction. Defendant contends, moreover, that this crime is not one of those listed in the statute as a sex offense and should not, therefore, be considered in determining his risk level. Were Defendant to succeed in his arguments, he would become a level one offender according to the Board’s scheme of assessment.
New York’s Sex Offender Registration Act, Correction Law, defines a sexually violent offense as a conviction of or a conviction for an attempt to commit any of the provisions of various sections of the penal law. A sexually violent predator is a person convicted of a sexually violent offense, or a sex offender who suffers from a mental abnormality that makes such person likely to engage in predatory sexual conduct.
Given defendant’s conviction for an attempt to violate Penal Law, he clearly is defined by statute as a sexually violent predator. Such characterization does not, however, alone require the presumption that defendant poses the highest risk of recidivism. Section 168-n of the Act directs that the sentencing court first determine whether the defendant is a sex offender or a sexually violent predator and then determine the level of notification. The Board’s Guidelines also interpret the Act to require an individualized evaluation of risk.
It is the public notification provisions that distinguish the various risk levels since all sex offenders must register annually for ten years unless relieved of this obligation by the court. As a sexually violent predator, defendant is also required to verify his address quarterly, not as a function of his risk level designation, but based upon the nature of his conviction. The statute provides that the court may relieve a sexually violent predator of the duty to verify quarterly if it finds that the person no longer suffers from a mental abnormality that would make him likely to engage in a predatory sexual violent offense. Such language suggests intent to make the presence of a mental abnormality a necessary element of the sexually violent predator designation. The New York statute does not, however, so provide, but, unlike the Federal Act, defines such predator in the disjunctive: an offender convicted of a designated crime or an offender who suffers from a mental abnormality. There is no indication in the record before the Court in either the Instrument or the Pre-Sentence Investigation Report that defendant ever suffered from a diagnosed mental abnormality. In light of the language of Section 168-a, however, the defendant will be required to verify his address with authorities quarterly. He will also be listed in the sexually violent predator directory as provided in Section 168-q.
Turning to the evaluation of the level of risk of recidivism posed by defendant, the Court finds defendant’s arguments to be well-founded.
Defendant argues that ten points were improperly added to his risk score for forcible compulsion when no allegations of force are contained in the charges and the defendant did not in any way acknowledge the use of force.
The Pre-Sentence Investigation Report indicates that as early as April, 1994, neither complainant nor her mother could be reached and no victim’s statement is contained in the record. The only description of the rape is apparently derived from court or District Attorney Files. The Pre-Sentence Investigation Report indicates: the defendant told child-one, age 10, to lie down; the defendant then took off the complaining witness’ clothes, opened up her legs and placed his penis inside her vagina; the defendant gave the child money not to tell anyone.
There is no mention of threats or violence of any kind. Although an inference of physical trauma necessarily caused by the penetration of a ten-year-old girl by a 58-year-old man can be made, there is no evidence of injury. Factor 5, “Age of Victim,” which allocates thirty points for a victim age ten or less, would appear to cover this circumstance.
Penal Law does not require proof of force but merely that the victim is less than eleven years old. Although there are cases which suggest that differences in age and size between perpetrator and victim may be sufficient to constitute the force necessary to prove forcible compulsion where the charges are brought under Penal Law, those cases are distinguished by the presence of testimony of some physical act of actual restraint and, more importantly for the purpose of the issue at bar, the charges alleged the actual use of force and were not, as here, premised exclusively on the age of the victim.
Moreover, the Guidelines, which were devised by the Board and govern their evaluation, expressly state: Points should not be assessed for a factor, e.g., the use of a dangerous instrument, unless there is clear and convincing evidence of the existence of that factor.
Defendant also argues that the addition of twenty points for two victims was erroneous in light of his admission to only the one count involving child-one. Again referencing the Guidelines, the Board itself acknowledges: The fact that an offender was arrested or indicted for an offense is not, by itself, evidence that the offense occurred.
According to the amended Guidelines the Board is not limited to the crime of conviction. It is also reasonable in light of the purpose of the evaluation to protect vulnerable populations from serious predators, provided, there is clear and convincing evidence that such additional crimes were in fact committed by the offender. The argument that the Board would consider evidence of other crimes in making its risk assessment even where an admission had been made, as here, to only one crime, is consistent with the amended Guidelines established by the Board.
On the argument that information in the presentence investigation report is considered to be clear and convincing evidence, given the speculative source of the information contained in that report, the Court does not agree that the hearsay description of untried and unadmitted allegations should be so credited. There was no sufficient evidence before the Board to support its addition of twenty points for two victims. However, the District Attorney has supplied to the Court the Grand Jury testimony of the second complainant and has also provided copies of the photographs alleged to have been taken by defendant. Such evidence is clear and convincing proof that between August 1 and August 31 of 1992, defendant took photographs of child-two in her underwear. Child-two further testified that, prior to the photographs being taken, defendant had told me to have sexual contact with him, but I said no. While it appears that no such contact ever took place with respect to fifteen-year-old child-two, defendant’s persistence in ultimately securing the desired gratification from her younger sister makes his overtures to child-two relevant in assessing his risk. It is noted, moreover, that, although present at the hearing, defendant did not deny the charges concerning child-two.
On the argument that the alleged transgression with respect to child-two resulted in a charge of only the misdemeanor crime of Endangering the Welfare of a Child under Penal Law, which is not one of the sex offenses, the complainant in that charge may not be considered a second victim for purposes of risk assessment, is unfounded.
The Board is determined to treat endangering the welfare of a child as if it were a sex crime since it generally involves sexual misconduct, especially when it is part of a plea bargained disposition. Where a review of the record indicates that there was no such misconduct, a departure may be warranted.
Of course, such rationale, while certainly reasonable, does not answer defendant’s argument that he did not admit the allegations respecting child-two and should not be penalized based on a mere allegation. The Board’s use of a prior adjudication of the crime of Endangering the Welfare of a Child under Factor 9 of criminal history is not the same as using a non-adjudicated accusation as an element in determining the number of victims in the current offense. However, there is clear and convincing evidence in the sworn testimony of complainant before the Grand Jury that defendant engaged in sexual misconduct toward her which has not been denied by defendant. Since the additional points will not result in any penalty to defendant and that the purpose of the Act is to assist law enforcement in a regulatory context only, evidence of sexual misconduct toward a second victim was properly considered in determining defendant’s risk to the community. As noted in the Guidelines: The existence of multiple victims is indicative of compulsive behavior, and is therefore a significant factor in assessing the offender’s risk of re-offense and dangerousness. Twenty points were properly assessed for two victims.
Lastly, the District Attorney suggests that fifteen additional points should be added to defendant’s risk score because he is no longer supervised by a parole officer with special expertise in dealing with sex offenders as he was at the time of his release. Defendant was released to parole on 1 March 1996, having served at least the minimum of a sentence of one and a half to four and a half years imposed on 18 April 1994. On 3 September 1997, he completed his sentence and is therefore no longer within the jurisdiction of the Division of Parole. To grant the District Attorney’s application now, two and a half years after his release, solely because his sentence has been concluded, would be arbitrary and irrational and inconsistent with the purposes of the Act. The District Attorney’s argument here is equally applicable to every convicted offender and, if accepted, would require the eventual assessment of fifteen additional points to every offender who has completed his sentence, regardless of the risk he actually poses. There is no authority for such assessment in the Act or the Guidelines. Factor 14 provides: Supervision is clearly intended to apply only to the immediate circumstances at the time of release from incarceration when the offender reenters the community. The request to assess fifteen points for lack of supervision is denied.
Using the scoring set forth in the Risk Assessment Instrument, including twenty points for two victims and disallowing ten points for forcible compulsion, defendant’s presumptive risk level is moderate based upon a modified score of 75. This is the threshold score for Level 2 risk.
Here, defendant is now 62 years of age and was steadily employed in New York City for over thirty years as a jewelry polisher. He has no prior criminal history and has admitted his crime and participated in a six-week sex offender program. While his living situation is somewhat unstable in that he has resided in various men’s shelters since his release, according to the Probation Report, he has a daughter who resides in the Bronx. The crime he committed against child-one was truly egregious, but it was a crime of opportunity in that defendant was residing with her in her grandmother’s home and neither sought her out for victimization, nor was he a stranger to her. Defendant suffers from poor eyesight and a heart condition and is supported by disability benefits. He appears to pose little risk of re-offense in the community at large. As a sexually violent predator, he will be listed in the sexually violent predator subdirectory and required to verify his address quarterly and, as an adjudicated sex offender, his name may be accessed by the public through the “900” telephone number.
Under the circumstances, the Court finds that a deviation from the presumptive risk level is warranted and defendant is properly classified as a Level 1, low risk offender.
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