This is a proceeding wherein the defendant, RJ, is a convicted sex offender pursuant to Correction Law § 168-a 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 under Penal Law § 130.35(3), commonly known as “statutory” rape. All other charges in the Indictment, one count of Sexual Abuse in the First Degree under PL § 130.65(3) 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. 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.
Correction Law Article 6-C, the Sex Offender Registration Act, effective 21 January 1996, modeled after New Jersey’s “Megan’s Law”, was meant to address the need to protect the public from the risk of repeat offenses by perpetrators of sex crimes, deemed inherently susceptible to recidivism as held in People v. Cropper.
The Act requires that sex offenders be assessed a “risk level” at the time of sentence or prior to release from incarceration. The sentencing court bears the responsibility to make such determination either initially or, for incarcerated offenders, following receipt of the recommendation of a statutorily-created Board of Examiners of Sex Offenders whose duty it is to evaluate the probability of recidivism on the part of the offender based on certain statutory criteria contained in Correction Law § 168-l(5). The offender is entitled to notice of the risk evaluation proceeding and may request a hearing.
The court is of the opinion that the Act contains several procedural anomalies which have created confusion in implementation and interpretation.
On 5 March 1993, RJ was arrested and charged with Rape in the First Degree under Penal Law § 130.35(3), Sex Abuse in the First Degree, and Endangering the Welfare of a Child based upon the complaint of ten-year old JJ who stated the 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.
The defendant was also charged in the same indictment with endangering the welfare of a child GG, age 15, who was photographed by the defendant, both with her consent and surreptitiously, in her underwear following her refusal of the defendant’s requests for “sexual contact.” There was no admission to this accusation although the minutes of GG’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, the criminal defendant pled guilty to Attempted Rape in the First Degree with respect to the allegations concerning JJ. The then-58-year-old defendant, a live-in friend of JJ’s grandmother with whom both JJ and GG also resided, admitted he had “had sex” with JJ and knew she was “under eleven.” On 18 April 1994, the defendant was sentenced to one and a half to four and a half years incarceration. Defendant was released from prison on 1 March 1996.
On 12 May 1997, the defendant appeared in response to notice and was appointed counsel. Challenging his recommended assessment at risk level 2, pursuant to Correction Law § 168-n(3). On 25 August 1997, the defendant requested a hearing. A full hearing was held on 17 December 1997.
The defendant submitted the Board’s Risk Assessment Guidelines in effect at the time of Defendant’s evaluation, dated January 1996, 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 in this proceeding.
The defendant has 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 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.
The defendant challenges the 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 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.
If the defendant to succeeds in his arguments, he would become a level one offender according to the Board’s scheme of assessment.
It is to be noted that New York’s Sex Offender Registration Act, Correction Law § 168-a(3), defines a “sexually violent offense” as “a conviction of or a conviction for an attempt to commit any of the provisions of sections 130.35, 130.50, 130.65, 130.67 and 130.70 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” under Correction L. § 168-a(7).
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.
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