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Original SORA Decision,

In this Criminal case, defendant, a 78 year old man, was convicted by plea of guilty of one count of Assault in the Second Degree and one count of Attempted Sexual Abuse in the First Degree. Thereafter, he was sentenced to a determinate sentence of imprisonment of 5 years with 5 years post-release supervision on the assault count and an indeterminate sentence of 2–4 years incarceration on the sexual abuse count, with those sentences to run concurrently. The Court’s review of the court file for this crime indicates that the Defendant repeatedly struck an 86 year old woman with a blunt object causing lacerations and a loss of consciousness. As the victim lost consciousness, she felt her attacker pull her pants down. When she awoke her pants and shoes had been removed. She had significant bruising on her hands and back and required surgery for an eye injury which occurred during the attack. She identified her attacker as a person she knew from the building she lived in and said he had lived there for about five years.

A New York Sex crimes attorney said that Defendant allegedly told the arresting police officer that he came out to the garden of the senior citizens housing complex where the assault occurred to get drunk and pass out. He also admitted that he knew the victim. When interviewed in preparation for his pre-sentence report, he denied his guilt but said he wanted his guilty plea to stand. He asserted that he had “blacked out” and that someone else had tried to rob the victim. During argument on the Original SORA Decision, the Defendant’s counsel asserted that the evidence against defendant was highly suspect and that despite his guilty plea and the complainant’s grand jury testimony, there was not reliable evidence that Defendant was guilty of a sex crime.

In order for a Defendant to obtain a modification of his risk level under SORA he must demonstrate that such a modification is justified by clear and convincing evidence. The Defendant’s previous RAI score and presumptive override are not any different now than they were at the time of the Original SORA Decision. To lower the Defendant’s risk level then, the Court would have to find that a departure from the presumptive risk level was warranted. Generally, a court may not depart from the presumptive risk level unless it concludes that there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the RAI.

The Court found that the witness doctor’s testimony to be credible and believes that several factors, considered together, demonstrate by clear and convincing evidence that a departure from the RAI’s presumptive risk level and a modification of the Defendant’s risk category is appropriate. Defendant has now been in the community for two years. During that time he has apparently led a completely law abiding life. But there are a number of other even more significant factors with respect to his behavior during that two year period which have reduced his re-offense risk. Most significantly, he has stopped drinking alcohol. Alcohol abuse has apparently been the single most significant fact which has been associated with the Defendant’s crimes like domestic violence. It played a key role in the Instant Offense. There is no guarantee, of course, that this abstinence will continue. But defendant is not sober by chance. He is clearly working at it. He attends AA meetings three times per week. He has completed a substance abuse treatment program. He appears determined to remain sober. He is being supported in that goal by his wife.

Defendant obviously has an interest in having her husband’s risk level reduced so he can come home to live and more completely care for her. But she is also the person who knows him best. As she perceptively observed, Defendant becomes offensive with women when he drinks. He doesn’t drink anymore. Defendant appears to be dedicated to caring for his wife. He has actively participated in sex crimes offender treatment. As this Court outlined in the Original SORA Decision, time spent offense-free in the community has been linked in actuarial studies to a decreased risk to re-offend. That factor is not accounted for, however, by the RAI. Two years, of course, is a relatively modest amount of time. Indeed, the Board’s argument that this time period is simply not long enough to justify granting the instant motion is not an unreasonable one. The fact that defendant has apparently not only remained completely sober during that period but put into place a lifestyle designed to maintain that sobriety, however, is very significant.

A second factor is defendant’s age (78). As the Court outlined in the Original SORA Decision, age is a significant factor which reduces an offender’s risk to re-offend. It is also a factor which is not taken into account by the RAI. This factor is much less significant for defendant than it is for other offenders because the Defendant’s last crime occurred at an advanced age when his actuarial likelihood to re-offend had already significantly diminished. Nevertheless, the fact that he is now 9 years older than he was when he last offended in 2003 indisputably decreases his actuarial re-offense risk.

His relationship with his wife since being released from prison also appears to be a significant protective factor which this Court did not have the opportunity to evaluate at the time of the Original SORA Decision. Reflecting the decreased sexual re-offense risk which arises from long term intimate relationships, the Static–99 assigns a point to offenders who have not lived with an intimate partner for at least two years. During the hearing of this criminal action on the Original SORA Decision, the Defendant’s psychiatric expert did not assess defendant with that one point on the Static 99 because he had already apparently lived with his wife for two years at the time. Thus, allowing defendant to live with his wife now would not reduce his score on the Static 99. It seems obvious to the Court, however, that forcing defendant to sleep at the Shelter as opposed to at home with his wife may increase his re-offense risk. Perversely, moreover, the reason defendant cannot live with his wife is because of his Level 3 SORA designation. So that risk level determination may actually be creating a greater risk that he will re-offend in this criminal case.

The Board, in its most recent submission, opines that defendant should “explore alternative living situations which would allow him to reside with his wife” to alleviate the hardship which the current inability of the defendant to live together has created. Obviously, however, the ability of an 86 year old woman in failing health and with very limited mobility and a 78–year–old Level 3 sex offender, both of whom are living on government assistance, to find a suitable alternative apartment in New York City might well be severely limited. The chance that the defendant could find such an apartment in New York City which was not within 1000 feet of a school is probably non-existent. Nor, in the Court’s view, do the current residency restrictions which have been imposed on defendant have any positive benefit in protecting the community. Defendant apparently spends all of his free time prior to his Bellevue curfew at his wife’s apartment now anyway. He just cannot sleep there. It is difficult to see what public safety purpose is being served by that restriction. Other than its negative impact on Defendant, the most significant consequence of the current restrictions is that defendant’s wife is being deprived of the complete care and companionship of her husband. Obviously, these circumstances are again a factor which is not considered by the RAI.

The Defendant was assessed ten points under the RAI for not accepting responsibility for his crimes under RAI Factor No.12. Without that point assessment, he would have been considered to be at a moderate risk to re-offend under the RAI’s point scoring system, although he still would have been classified as being at a high risk to re-offend because of the presumptive “Override” which the RAI assigned to him because of his prior sexual offense convictions. The Board, in its most recently submission, also noted that Defendant’s continued denial of his sexual offenses was a “very troubling” fact which, among others, indicated that the instant motion should be denied. As outlined in the Original SORA Decision, however, the failure of a sex offender to accept responsibility for his sex crimes is not correlated with an increased risk to re-offend.

Nor is the presumptive override for defendant’s prior sexual offense convictions in 1955 and 1962 justified. As the evidence with respect to the Original SORA Decision indicated, the fact that an offender has previously been convicted of a sex crime cannot be used alone to determine that he is at a high risk to re-offend. That history must be considered along with other relevant factors. Defendant was scored with an additional 30 points under the RAI because the victim of the Instant Offense was over 63. Without those points, he would have been 25 points below the scoring threshold for a Level 3 offender. The expert testimony and submissions at the hearing on the Original SORA Decision, however, indicated that there is no known scientific evidence of any kind which links the advanced age of a victim to an increased sexual re-offense risk. The age of the victim in the Instant Offense is certainly disturbing. But it says nothing about the Defendant’s risk to re-offend.

The Court declined to depart from the RAI in the Original SORA Decision because it held that it did not have evidence which warranted such a departure. That evidence has now been presented. There is absolutely no doubt, in the Court’s view that the Static–2002 and the expert opinion that Defendant is at a moderate risk to re-offend is more probative of his actual re-offense risk than the un-validated and clearly erroneous scoring parameters of the RAI. For all of those reasons, the Defendant’s arrest motion is granted and the Defendant is determined to be a sex offender at a moderate risk to re-offend or a Level 2 offender under the Sex Offender Registration Act.

Here in Stephen Bilkis and Associates, we are always available to help those who are in need. If you are a victim of abuse by sexual means, you can consult our New York Sexual Abuse attorneys. They will inform you of what actions to take in prosecuting your assailants. We also have New York Child Pornography lawyers who will protect these innocent children who were victims of those who took advantage by reason of the tender ages of the children.

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