In evaluating this case, this Court notes that the Guideline approach to predicting sexual offender recidivism has recently been critiqued as outdated and frozen in time. A brief examination of the scholarly support for the Guidelines lends credence to this criticism. The scholarly articles which underlie the RAI date from the mid–1980s to the mid–1990s. This lack of updated analysis raises a serious and on-going question regarding the weight to be assigned to the Board’s institutional role in defining and weighing, on a comparative basis, the various factors relevant to assessing the risk of re-offense by any individual defendant. As commanded by the Corrections Law, the Board in this case should perform an important task for the courts: an evaluation and recommendation of the critical and pertinent factors that most accurately predict a defendant’s risk of recidivism. In implementing this legislative scheme with respect to sex crimes offenders, the Board should perform an administrative task similar to role the federal sentencing commission providers for judges sentencing federal offenders: it should provide the scholarly justification for classifying certain offenders based on “empirical data and national experience, guided by a professional staff with appropriate expertise.”
In this case, for the reasons that follow, this Court questions whether the Board, in its translation of national experience data and empirical data to this particular case is entitled to the apparently substantial deference that the Correction Law accords. As a consequence, this Court is reluctant to rigidly adhere to the Guidelines and the commentary incorporated therein, as evidenced in the RAI and case summary presented in this case
First, this Court notes that the RAI before this Court does not appear to fully accord with the legislative directive for risk assessment analysis in the Correction Law. The statute specifically directs the Board to include in the assessment “whether psychological or psychiatric profiles indicate a risk of recidivism.” NY Correction Law § 168–l(5)(e). The statute also indicates that “the sex offender’s response to treatment,” shall be included in the Guidelines. NY Correction Law § 168–l(5)(f). Curiously, the Guidelines before this Court make no reference to either of these criteria. The Guidelines state that the Board “opted to create an objective assessment instrument that would provide a risk level combining risk of re-offense and danger posed by a sex offender” and “as required by the Act, the instrument includes factors relating to the offender’s current offense, his criminal history, his post-offense behavior and his planned release environment.” The Guidelines ignore subdivisions (e) and (f) and do not permit this Court to consider either of those factors in calculating this defendant’s risk of recidivism.
Second, there is an avalanche of new data—published after the Guidelines were promulgated—involving sex offenders and their recidivism rates in the wake of the enactment of sex offender registry laws nationwide. The New York State Division of Probation and Correctional Alternatives has published several bulletins which address the methods of calculating recidivism in this population. These studies, conducted by a coordinate branch of state government, contain scores of updated articles and analyses of the predictive tools and approaches to sex offender assessment, including updated articles on rape from authors whose earlier works are cited in the Guidelines.
Third, this Court understands that the validity of the Guidelines as a tool for determining sex crime offender recidivism is not before this Court. The defendant makes no such challenge and no New York court has determined that the RAI’s analysis or the Board’s Guidelines deprive a defendant of due process or any other statutory right. However, the state of scholarship in assessment of sex offenders, judicial concerns about the validity of assessment tools, the debate over the importance of clinical factors in evaluating recidivism risks, combined with the plethora of mistakes and omissions in the RAI in this case, caution this Court to intensively examine the facts and circumstances of this defendant before reaching any conclusions.
The mistakes in the case summary continue in the description of the defendant’s criminal history. Critically, the summary indicates that defendant was convicted of Sexual Misconduct in April 1998 and was sentenced to five years’ probation. The Court conducted its own review to determine the accuracy of the criminal history. A criminal history report from the New York State Division of Criminal Justice (“NSIS”) and further investigation confirmed that the defendant, although charged with robbery in 1995, pled guilty to Sexual Misconduct in 1998, three years later. However, even those facts appear to be challenged by other documents. A certified conviction from the Tompkins County Clerk’s Office indicates that the defendant pled guilty to Criminal Mischief with intent to cause property damage in the Town of Brutus in 1995 and was sentenced to three years’ probation.
Based on the extensive mistakes and misstatements in the case summary, this Court declines to accord any significant weight to these hearsay assertions in resolving the issues under SORA that are currently before the Court. This Court can credit “reliable hearsay,” but, when evaluated in its entirety, the allegations in the case summary do not meet that test. The numerous errors and omissions cast substantial doubt on the reliability of any allegations in the case summary. The Court, therefore, declines to accord any weight to the case summary and instead. Will examine the entire record in this case for clear and convincing evidence that the factors alleged in the RAI are justified.
The Court concludes that there is no clear and convincing evidence that the defendant used forcible compulsion, that the victim was physically helpless at the time of the crime, or that the victim was a stranger. As a result, 50 points must be subtracted from the assessment under the RAI presented to the Court. Therefore, the defendant is rated a 95 score, which classifies him as Level 2 offender. The Court also determines that the defendant is a predicate sex offender, as the defendant was convicted of burglary set forth in Correction Law after previously being convicted of a similar offense.
Finally, there are no facts, presented to this Court which constitute clear and convincing evidence for any departure from the defendant’s presumptive risk level as established by the Court. The Court, in analyzing the various factors, has used the clear and convincing standard to assess the people’s classification on each criteria and, as indicated, found it to be wanting in several areas. Having modified the scores in these areas, the Court cannot find clear and convincing evidence to justify any further departure.