The defendant was charged under this indictment with Rape in the First Degree stemming from an incident that occurred on 18 February 1976. He was convicted and sentenced to an indeterminate period of incarceration of from 8½ to 25 years. In 1996, the defendant was classified as a level three sex offender. Thereafter, as a result of the Stipulation of Settlement in Doe v Pataki, he was afforded a new hearing on his sex offender status, utilizing a new risk assessment instrument.
In December 2004, a SORA hearing was conducted before this Court, which designated the defendant a level three sex offender. The defendant appealed from this adjudication and on 13 November 2007, the Second Department reversed it and remitted the matter for a new hearing and determination based on the untimely notice of the new risk assessment instrument, which the defendant did not receive until the day of the hearing.
On 10 April 2008, a new SORA hearing was scheduled to begin in this Part. Prior to its commencement, however, the People moved for an order allowing the Court to consider defendant’s New Jersey conviction, which occurred after the offense at bar, and to include another subsequent conviction in the Court’s SORA calculations.
The defendant opposed the motion. The Court decided that the People’s application to include the New Jersey conviction for the purposes of SORA calculations was denied to the extent that the New Jersey conviction would not be included in the risk assessment calculations as a prior crime as held in People v Best. However, the Court found that the New Jersey conviction, as well as a 2006 Sexual Abuse conviction, could be considered by the court in evaluating whether there should be an upward departure from the risk assessment instrument.
On 5 August 2008, a risk level assessment hearing was held in this Part. The hearing was conducted in the absence of the defendant, who appeared in court in the morning, then left the court without providing a reason, and failed to return. The hearing was delayed while a diligent search for the defendant, both inside and outside the Courthouse was made prior to the hearing. At this hearing, the People introduced a copy of the defendant’s New Jersey conviction for aggravated assault and battery while carrying a concealed weapon. The Court was also provided with a copy of the defendant’s 2006 conviction in New York State for Sexual Abuse in the Third Degree stemming from two separate offenses, Forcible Touching and Sexual Abuse in the Third Degree, involving two different women. The People’s position is that both convictions, particularly the sexual offenses committed after the defendant was released from incarceration on the instant matter, demonstrate the defendant’s likelihood to re-offend and provide ample basis for an upward departure from the Risk Assessment Instrument.
As the Court pointed out in its decision of 1 July 2008, the 40 points assessed against the defendant on the Risk Assessment Instrument for the New Jersey conviction as a prior crime could not lawfully be assessed against him on that ground. Accordingly, 40 points had to be deducted from the instrument, so that the Total Risk Factor Score for the defendant was not 135, but 95, and the Presumptive Risk Level was 2, not 3. However, the Presumptive Risk Level is not necessarily binding on the Court in making its adjudication. The Risk Assessment Instrument itself allows the Court to determine whether there are any factors that would warrant a departure from the presumptive risk level. No drug was found.
To Be Cont.
In the Court’s prior decision, the Criminal Court noted that the SORA Risk Assessment Guidelines and Commentary provide that a defendant’s concurrent or subsequent criminal history may be the basis for an upward departure if it provides reason to believe that the offender poses an increased risk to public safety. The Court cited the holding in People v Barad, in which the Second Department held that a court may depart from the presumptive risk level determined by the risk assessment instrument based upon the facts in the record and that a departure from the presumptive risk level is warranted where there exists aggravating or mitigating facts of a kind or to a degree not otherwise taken into account by the guidelines. The question, then is whether the defendant’s two convictions, one for assault in New Jersey and one for Sex Abuse in the Third Degree committed after the defendant’s release from incarceration on the instant matter, are an appropriate basis for an upward departure.
The court is of the opinion that the defendant’s two convictions, particularly the one involving the sexual abuse of two different women, are clearly relevant to the court’s assessment of the defendant’s “risk to public safety.” These convictions are not “otherwise taken into account by the guidelines,” and thus may be considered in the context of an upward departure as ruled in the case of People v Miller and People v Mudd. Although defendant’s subsequent conviction in New Jersey cannot be considered a “prior crime”, this does not mean that the conviction should not be disregarded.
The same is true for the 2006 conviction for Sexual Abuse in the Third Degree. As the Court has already pointed out, the SORA guidelines specifically provide that although concurrent or subsequent criminal history is not covered under Factor 9 of the guidelines, it may be the basis for an upward departure if it provides reason to believe that the offender possesses an increased risk to public safety akin to People v Barad where the Second Department held that a court may depart from the presumptive risk level determined by the risk assessment instrument based upon the facts in the record and that a departure from the presumptive risk level is warranted where there exists aggravating or mitigating facts of a kind or to a degree not otherwise taken into account by the guidelines.
The Court finds that the two subsequent convictions warrant a departure from the presumptive risk level calculated on the Risk Assessment Instrument in that they demonstrate that the defendant poses an increased risk to public safety and that he is likely to commit another offense in the future.
Based upon the foregoing, the defendant is adjudicated to be a Level Three Offender.
Queens County Sex Crime Attorneys and Queens County Rape Attorneys at Stephen Bilkis & Associates are experts in the fields of law mentioned in the case above. If you have questions regarding the issues tackled, please feel free to call our toll free number or visit our place of business. We have offices all around the counties of New York.