Based on the circumstances, the defendant’s conviction for an attempt to violate Penal Law § 130.35, he clearly is defined by statute as a “sexually violent predator”. This does not, however, require the presumption that the 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.
With regard to the evaluation of the level of risk of recidivism posed by the defendant, the court finds that the Defendant’s arguments are well-founded.
He 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 he did not in any way acknowledge the use of force. The court finds 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.
It is noted that Penal Law § 130.35(3) does not require proof of force but merely that the victim be “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 § 130.35(1) akin to the case of People v. Fuller and People v. Yeaden, 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.
The court finds that the defendant must prevail in his challenge to the ten points assessed for forcible compulsion.
Further, the criminal defendant argues that the addition of twenty points for two victims was erroneous in light of his admission to only the one count involving JJ.
The court notes that the fact that an offender was arrested or indicted for an offense is not, by itself, evidence that the offense occurred. 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.
Mr. T testified that according to his understanding, 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.
The court finds that there is insufficiency in 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, the defendant took photographs of GG in her underwear. GG further testified that, prior to the photographs being taken, defendant had told her to have sexual contact with him, but she refused. While it appears that no such “contact” ever took place with respect to fifteen-year-old GG, Defendant’s persistence in ultimately securing the desired gratification from her younger sister makes his overtures to GG relevant in assessing his risk. It is noted, moreover, that, although present at the hearing, Defendant did not deny the charges concerning GG.
Defendant further argues that because his alleged transgression with respect to GG resulted in a charge of only the misdemeanor crime of Endangering the Welfare of a Child under Penal Law § 260.10, which is not one of the sex offenses enumerated in Sections 168-a(2) and (3) of the Act, the complainant in that charge may not be considered a second victim for purposes of risk assessment. This often leads to domestic violence issues.
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 in that the purpose of the Act is to assist law enforcement in a regulatory context only as in People v. Stevens, 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 reoffense and dangerousness.” Twenty points were properly assessed for two victims.
Finally, 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.
The court finds that granting this would be arbitrary and irrational and inconsistent with the purposes of the Act. Besides, there is no authority for such assessment in the Act or the Guidelines. Factor 14: 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.
The court finds that a deviation from the presumptive risk level is warranted and the defendant is properly classified as a Level 1, low risk, offender.