DECISION & ORDER SORA In this Sex Offender Registration Act (SORA) proceeding, the court is asked to consider the due process ramifications of statutory provisions which mandate that an offender convicted of an enumerated “sexually violent offense” be designated a “sexually violent offender” even where the offender did not actually inflict physical violence on the victim. For the reasons which follow, the court finds that the statutory provisions requiring the defendant to be designated a “sexually violent offender” are rationally related to SORA’s legislative purpose, and are therefore not unconstitutional as applied to him.The defendant Mark Smith is a 54-year-old man with a history of alcohol and substance abuse. His criminal history includes a felony conviction for driving while intoxicated, and eight misdemeanor convictions for offenses ranging from assault in the third degree to criminal possession of a controlled substance in the seventh degree.Early in the evening of June 30, 2016, the defendant approached a 43-year-old woman on a sidewalk in Kew Gardens, Queens. As captured by surveillance video, the defendant sat down with the victim and engaged her in conversation for about 45 minutes. During this time frame, the defendant purchased vodka from a nearby liquor store, and provided it to the victim, who appeared visibly intoxicated. When the victim passed out, the defendant performed oral sex on her and then raped her as she lay motionless on the sidewalk. Multiple individuals called 911, including two eyewitnesses. The defendant fled, but was followed by one of the eyewitnesses and apprehended about two blocks away. The defendant claims that he was so intoxicated during the incident that he blacked out, and was largely unaware of what occurred. Several months after the rape and sexual assault, the victim committed suicide.The defendant was subsequently indicted on charges of rape in the first degree, criminal sexual act in the first degree, and sexual abuse in the first degree. On April 25, 2017, the defendant pleaded guilty to attempted sexual abuse in the first degree in full satisfaction of the indictment. In exchange for his plea, the court agreed to sentence him to a term of two years of imprisonment, and 10 years of post-release supervision. The promised sentence was imposed on May 25, 2017.In anticipation of the defendant’s release from incarceration, on December 14, 2017, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (RAI) which scored the defendant 75 points, indicating that he was at moderate risk of reoffending and should presumptively be classified a level two sex offender. Specifically, in the section of the RAI that considers the nature of the offense, the defendant was scored 25 points under risk factor 2 for engaging in sexual intercourse and oral sex with the victim, and 20 points under risk factor 6 because the victim was physically helpless. In the criminal history section, the defendant was scored 15 points for his prior felony conviction, and 15 points for his history of drug and alcohol abuse. The Board did not recommend a departure from the defendant’s presumptive risk level. In the accompanying Case Summary, the Board explained that it had not scored the defendant 20 points under risk factor 7 for being a stranger because it was unclear whether he knew the victim prior to the offense. However, in the event that evidence was submitted at the SORA hearing demonstrating that the defendant was a stranger, the Board recommended that his score be adjusted accordingly. At the time the Case Summary was prepared, the defendant was on a waiting list to participate in the DOCCS Alcohol and Substance Abuse Treatment Program and the Sex Offender Counseling and Treatment Program. In addition to making a risk level recommendation, the Board also recommended that the defendant be designated a sexually violent offender because he had been convicted of a sexually violent offense as defined in Correction Law §168-a(3).Prior to the scheduled date of the SORA hearing, the defendant requested a downward departure from a risk level two to a risk level one. In support of the requested downward departure, defense counsel argued that the RAI overstated the defendant’s risk of reoffense because it double counted his history of alcoholism, and failed to take into consideration the degree to which the subject offense was the product of alcoholism rather than sexual predation. Counsel further argued that a downward departure was warranted based upon the defendant’s conduct and rehabilitative efforts while incarcerated, and his strong family support. As exhibits in support of the requested downward departure, the defendant submitted an inmate disciplinary report indicating that he had no inmate disciplinary history, an evaluation form reflecting his successful completion of an aggression replacement training program, and a Sex Offender Counseling and Treatment Program monthly evaluation form dated January 12, 2018, indicating that he had recently begun treatment and displayed “highly motivated” behavior.In addition to seeking a downward departure, the defendant challenged the Board’s recommendation that he be designated a sexually violent offender, a designation that would subject him to a lifetime registration requirement regardless of his risk level. Counsel acknowledged Appellate Division decisions holding that a defendant convicted of an enumerated sexually violent offense must be designated a sexually violent offender, and that a SORA court has no discretion to do otherwise. However, counsel maintained that mechanically labeling the defendant a sexually violent offender, when he did not subject the victim to physical violence, would violate due process by placing “an undue burden on his liberty interest without any rational relationship to the ostensible goal of tracking sex offenders to keep the community safe.” Counsel also argued that the statutory scheme violated procedural due process because it did not provide an opportunity to be heard as to whether lifetime registration was appropriate in an individual registrant’s case.Immediately prior to the hearing, the People submitted a written response in which they argued that the defendant should be scored 20 additional points under risk 7 because he and the victim were strangers at the time of the offense. In support of this position, the People pointed out that the instant offense was captured on video surveillance, and maintained that no relationship existed between the defendant and the victim before he approached her on the street and engaged her in conversation for 45 minutes. The People further contended that the defendant’s conduct in raping the intoxicated victim after she passed out on a public sidewalk was a “predatory act,” and that “[t]he fact that alcohol played a part in the narrative neither minimizes or diminishes the choice the defendant made to rape a helpless woman on a public street.” The People also submitted that this court lacked discretion to decline to designate the defendant a sexually violent offender.At the SORA hearing conducted on March 30, 2018, the defendant did not contest the 75 points assessed against him on the RAI. However, the defense counsel urged the court to grant him a downward departure, arguing that the RAI double counted the defendant’s alcoholism because his only prior felony conviction was for driving while intoxicated. Counsel also pointed out that the defendant had committed no disciplinary infractions while incarcerated, had done well in sex offender treatment, had committed the subject sex offense “late in life,” and would be under supervision for 10 years. Addressing the issue of whether the defendant should be designated a sexually violent offender, counsel argued that this designation was “the worst type of label,” and that there was no rational basis to apply it to the defendant because he was heavily intoxicated when he committed the subject offense and did not subject the victim to violence. Counsel also contended that the Appellate Division, First Department’s decision in People v. Bullock (125 AD3d 1 [2014]) holding that a SORA court has no discretion to decline to designate an offender convicted of an enumerated offense a sexually violent offender, was based on statutory analysis, and had not analyzed the due process implications involved. The People opposed the defendant’s requests, arguing that public safety would best be served by designating the defendant a level two offender in view of the danger that he could relapse. After hearing argument, the court reserved decision. Upon due deliberation, the court now denies the defendant’s request for a downward departure, and designates him a level two sexually violent sex offender.In establishing an offender’s appropriate risk level under SORA, the People have the burden of proving the facts supporting the determinations by “clear and convincing evidence” (Correction Law §168-n[3]: see People v. Mingo, 12 NY2d 563, 571 [2009]; People v. Garcia, 153 AD3d 735 [2nd Dept. 2017]). “In assessing points, evidence may be derived from the defendant’s admissions, the victim’s statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders…or any other reliable source, including reliable hearsay” (People v. Crandall, 90 AD3d 628, 629 [2nd Dept. 2011]; see People v. Mingo, 12 NY3d at 573; People v. Cosby, 154 AD3d 789, 790 [2nd Dept. 2017]).Here, the court has been provided with the RAI and Case Summary prepared by the Board and will examine each risk factor and determine the defendant’s score (see Correction Law §168-n[1], [2]). The assessment of 25 points under risk factor 2 (sexual intercourse and oral sex with the victim), and 20 points under risk factor 6 (physically helpless victim) are uncontested, and are supported by reliable evidence including the Case Summary and the presentence report, which described the observations made by the eyewitnesses and noted that the victim was unresponsive and motionless when the police arrived. The assessment of 15 points under risk factor 9 (prior criminal history including non-violent felony conviction) and 15 points under risk factor 11 (history of drug or alcohol abuse) are similarly uncontested, and supported by reliable evidence demonstrating that the defendant has a prior felony conviction for driving while intoxicated, and a history of drug and alcohol abuse that included daily alcohol and heroin use. Thus, the defendant’s total score on the risk assessment instrument is 75, which falls within the level two (75 to 105 points) classification for moderate risk offenders. The court denies the People’s request to assess the defendant an additional 20 points under risk factor 7 because the defendant and the victim were strangers. Although the circumstances of this case strongly suggest that the imposition of points under risk factor 7 may indeed be warranted, the People submitted no evidence to demonstrate that the defendant and the victim were unknown to each other when the defendant approached the victim and engaged her in conversation. Thus, this risk factor has not been established by clear and convincing proof. In any event, the addition of 20 points would not alter the defendant’s presumptive risk level.Although the defendant scores as a level two offender, the risk level calculated by aggregating the points assigned on the RAI is only “presumptive” because “the Board or court may depart from it if special circumstances warrant” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; see People v. Johnson, 11 NY3d 416, 421 [2008]; People v. Wyatt, 89 AD3d 112, 119 [2nd Dept. 2011]). Indeed, the Guidelines acknowledge that an objective risk assessment instrument, “no matter how well designed, will not fully capture the nuances of every case” (Guidelines at 4). Thus, the court has the discretion to depart from the presumptive risk level where “there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines” (Guidelines at 4; see People v. Gillotti, 23 NY3d 841, 861 [2014]; People v. Johnson at 421). However, “utilization of the risk assessment instrument will generally ‘result in the proper classification in most cases so that departures will be the exception not the rule’” (People v. Guaman, 8 AD3d 545 [2nd Dept. 2004], quoting Sex. Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997]; see People v. Howard, 27 NY3d 337, 341 [2016]; People v. Walker, 146 AD3d 824 [2nd Dept. 2017]).An offender seeking a downward departure from the presumptive risk level has the initial burden of (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is not otherwise taken into account by Guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence (see People v. Gillotti, 23 NY3d at 861; People v. Kennedy,_AD3d_, 2018 NY Slip Op 02348 [2nd Dept. April 4, 2018]; People v. Wyatt, 89 AD3d at 128). Only if this twofold showing is made does the court have the “discretion to grant or deny the departure application based upon an examination of all circumstances relevant to the offender’s risk of reoffense and danger to the community” (People v. Wyatt, 89 AD3d at 128; see People v. Rodriguez, 159 AD3d 842 [2nd Dept. 2018]; People v. Rocano-Quintuna, 149 AD3d 1114, 1150 [2nd Dept. 2017).The question of "[w]hether a particular factor falls within the definition of ‘an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines’ is a legal question for the court, based upon an interpretation of the Guidelines and SORA…Where the alleged factor is taken into account by the Guidelines or is not related to the risk of reoffense and danger to the community, as a matter of law a departure is not warranted” (People v. Wyatt, 89 AD3d at 121).The court rejects the defendant’s contention that the RAI overstates his risk of reoffense by, in essence, double counting his history of alcoholism. Under risk factor 9, the defendant has been scored 15 points because his prior criminal history includes a nonviolent felony conviction for driving while intoxicated. The defendant has also been scored 15 points because his prior criminal history includes a nonviolent felony conviction for driving while intoxicated. The defendant has also been scored 15 points under risk factor 11 for his history of alcohol and drug abuse. The fact that the defendant’s prior felony conviction was for driving while intoxicated does not double count his history of alcoholism. The SORA Guidelines provide a distinct rationale for the assessment of points under these separate risk factors. Points based on the number and nature of an offender’s prior crimes are assessed under risk factor 9 because “[a]n offender’s prior criminal history is significantly related to his likelihood of sexual recidivism” (Guidelines at 13). Points based on drug and alcohol abuse are assessed under risk factor 11 because “[a]lcohol and drug abuse are highly associated with sex offending.” (Guidelines at 15). In this regard, the Guidelines explain that while “the use of these substances does not cause deviate behavior…it serves as a disinhibitor and therefore is a precursor to offending.” While the defendant’s prior felony conviction is related to the use of alcohol, risk factor 9 takes into consideration both the likelihood of reoffense and the degree of danger posed by his failure to abide by the law as evidenced by his felony conviction, and not the impact of drug and alcohol abuse as a disinhibitor.Moreover, the defendant’s history of alcohol abuse, and his claim that the subject offense was a product of his alcoholism, are not appropriate mitigating factors because they do not tend to establish a lower likelihood of reoffense or danger to the community of a kind, or to a degree, not otherwise taken into account by Guidelines. Although the defendant asserts that he is now “committed to remaining sober,” the Case Summary indicates that he did not participate in drug and alcohol treatment while incarcerated. And while the defendant presumably abstained from alcohol and drug use during his incarceration, such abstinence is an unreliable predictor of his post-release risk of reoffense (see People v. Watson, 112 AD3d 501, 502-503 [1st Dept. 2013]; see also People v. Moultrie, 147 AD3d 800, 801 [2nd Dept. 2017] [evidence that the defendant abstained from alcohol while incarcerated and completed a substance abuse program was of "limited value in determining whether the defendant would abuse alcohol when returned to the community").The additional circumstances identified by the defendant in support of his request for a downward departure --- his lack of a prison disciplinary record, his completion of an aggression replacement training program, and his participation in a sex offender treatment program --- relate to his conduct while confined, and are adequately taken into account by the Guidelines under Risk Factor 13 (see People v. Rocano-Quintuna, 149 AD3d 1114, 115 [2nd Dept. 2017]; People v. Alexander, 144 AD3d 1008 [2nd Dept. 2016]; People v. Perez, 138 AD3d 1081, 1082 [2nd Dept. 2016]). The defendant’s family support is also adequately taken into account by the Guidelines, which consider release environment (see People v. Hawthorne, 158 AD3d 651 [2nd Dept. 2018]; People v. Santiago, 137 AD3d 762, 764 [2nd Dept. 2016]). Accordingly, there is no basis in this case for a downward departure from a risk level two to a risk level one.The court must next consider the defendant’s contention that to additionally designate him a “sexually violent offender” would violate his substantive and procedural due process rights. Pursuant to amendments enacted in 2002, a SORA court must determine not only an offender’s risk level, but also whether the offender is a “sexual predator,” “sexually violent offender,” or “predicate sex offender” as those terms are defined by Correction Law 168-a(7) (see People v. Lockwood, 308 AD2d 640 [3rd Dept. 2003]). Classification of a defendant as a “sexual predator,” “sexually violent offender,” or “predicate sex offender,” requires lifetime registration, regardless of risk level (see Correction Law §168-h(2); Doe v. Pataki, 481 F3d 69, 71 [2nd Cir. 2007); People v. Mingo, 12 NY3d 563, 571 [2009]).Under SORA, a “sexually violent offender” is an offender convicted of one of the crimes enumerated in the statutory definition of “sexually violent offense” (see Correction Law §168-a[3], [7][b]). Here, the defendant was convicted of attempted sexual abuse in the first degree, which is one of the offenses enumerated in Correction Law §168-a(3). He is therefore a “sexually violent offender” as defined by statute. As the defendant acknowledges, there is appellate authority holding that a SORA court must designate an offender convicted of an enumerated “sexually violent offense” a sexually violent offender, and that the court does not have the discretion to do otherwise. In People v. Lockwood (308 AD2d 640 [3rd Dept. 2003]), the defendant was convicted of sexual abuse in the first degree, an enumerated sexually violent offense. However, the County Court declined to classify him a sexually violent offender based on the facts and circumstances of his crime. The People appealed, and the Third Department reversed, concluding that “the statutory definition of sexually violent offender, namely, a sex offender convicted of one of several enumerated sexually violent offenses, does not allow for a discretionary determination.”In People v. Bullock (125 AD3d 1 [1st Dept. 2014]), the First Department rejected an offender’s argument that a SORA court could exercise discretion in determining whether to designate him a sexually violent offender. The court determined that “there is nothing in the language of the Correction Law that states that the court has discretion to not designate as sexual predators, sexually violent offenders or predicate sex offenders those defendants who meet the respective statutory definitions.” The court noted that its interpretation was “consistent with statements in the legislative history of the 2002 amendments which demonstrate that the purpose of the bill was to bring SORA into full compliance with federal statutes: which require, inter alia, states to “prescribe a heightened registration requirement for sexually violent predators” (id. at 8).The First Department has continued to adhere to the position that a SORA court lacks the discretion to decline to designate an offender who has committed a statutorily enumerated “sexually violent offense” as a “sexually violent offender,” and has rejected requests to reconsider its holding in Bullock (see People v. Rivera, 156 AD3d 529 [2017]; People v. Santiago, 156 AD3d 439 [2017]; People v. Arbi, 143 AD3d 423 [2016]; People v. Ortega, 137 AD3d 630 [2016]; People v. Williams, 134 AD3d 480 [2015]).Defense counsel contends that this authority does not bar the court from declining to designate him a sexually violent offender on due process grounds because when the First Department interpreted the 2002 amendments to SORA in Bullock, “it did not consider, and has not since considered, the constitutionality of this portion of SORA.” In support of this contention, counsel quotes a portion of the First Department’s 2015 decision in Williams, which stated that the defendant’s “due process argument [was] unpreserved.” However, that same sentence in Williams also noted that the defendant’s due process argument was without merit.The First Department also found due process challenges to a defendant’s designation as a violent felony offender to be without merit in Santiago, Arbi, and Ortega.In addition, in People v. Belter (84 AD3d 905 [2nd Dept. 2011]), the Second Department found no merit to the defendant’s contention that his adjudication as a sexually violent offender, based on his conviction of attempted rape in the first degree, constituted a denial of his substantive due process rights. As authority for this determination, the Second Department relied upon the Court of Appeals’ decision in People v. Knox (12 NY3d 60 [2009]), and included a parenthetical drawn from that case which stated: “[rational basis for Legislature's adoption of 'hard and fast rule, with no exceptions' in SORA context]“).While the above referenced Appellate Division decisions do not set forth an analysis of the due process implications of designating all offenders convicted of enumerated sexually violent offenses to be sexually violent offenders, they indicate that claims similar to those raised here have already been rejected at the appellate level.Even assuming that the constitutionality of the SORA provisions requiring the defendant to be designated a sexually violent offender is still an open question, this court would not find those provisions violative of the defendant’s due process rights. In People v. Knox, the Court of Appeals rejected a constitutional challenge to SORA’s registration requirements brought by three defendants who had been convicted of either kidnapping, attempted kidnapping, or unlawful imprisonment of children. Because the defendants were convicted of crimes enumerated as sex offenses by Correction Law §168-a(2)(a)(i), they were required to register under SORA even though there was no proof that their crimes involved any sexual act or sexual motive. The defendants argued that labeling them as sex offenders violated their substantive due process rights, asserting that they had a liberty interest “in not having their admittedly serious crimes mischaracterized in a way that is arguably even more stigmatizing, or more frightening to the community, than a correct designation would be.” The Court of Appeals assumed in its analysis that the defendants had a constitutionally protected liberty interest not to be required to register under an incorrect label, but found that the defendants were not asserting a “fundamental right” as due process cases use that term (Knox at 66-67). Thus, the court applied the rational basis to test to the defendants’ claims, and determined that the challenged legislation was rationally related to the legitimate government interest of protecting children against sex crimes. In support of its conclusion, the court noted that the New York Legislature could have rationally relied on the fact that a great many cases of kidnapping or unlawful imprisonment of children are indeed sex offenses (Knox at 68). The Legislature could have also rationally found “that a child cut off from the safety of everyday surroundings is vulnerable to sexual abuse even if the offender’s sexual desires are not the motive of the crime.” (Knox at 68). Continuing its analysis, the court then stated:“The rational basis test is not a demanding one. We have repeatedly quoted the United States Supreme Court’s description of it as ‘a paradigm of judicial restraint’ (FCC v. Beach Communications. Inc., 508 US 307, 314 [1993]; see Affronti v. Crosson, 95 NY2d 713, 719 [2001]; Port Jefferson Health Care Facility v. Wing, 94 NY2d 284, 290 [1999]). There is a strong presumption that legislative enactments are constitutional (see Montgomery v. Daniels, 38 NY2d 41, 54 [1975]), and a party contending otherwise bears the heavy burden of showing that a statute is ‘so unrelated to the achievement of any combination of legitimate purposes’ as to be irrational (Affronti, 95 NY2d at 719, quoting Kimel v. Florida Bd. of Regents, 526 US 62, 84 [2002]).Defendants cannot carry that burden. In deciding not to exclude defendants and others similarly situated from the category of ‘sex offenders,’ the Legislature could have considered not only that cases where the term is unmerited are few, but also that the process of separating those cases from the majority in which it is justified is difficult, cumbersome, and prone to error. It could have rationally concluded that the administrative burden, and the risk that some dangerous sex offenders would escape registration, justified a hard and fast rule, with no exceptions. Considering that no fundamental right is at stake — defendants are suffering no worse injustice than being called ‘sex offenders’ instead of ‘child predators’ — the Legislature could constitutionally provide that all those convicted of kidnapping or unlawfully imprisoning children not their own, or of attempting to commit those crimes, be conclusively deemed sex offenders.The rationale of Knox applies with equal force here. The “primary government interest” underlying SORA is “protecting vulnerable populations and in some instances the public, from potential harm” posed by sex offenders (L. 1995, ch. 192, §1 ["Legislative purpose or findings"]; see People v. Alemany, 13 NY3d 424, 430 [2009]). Legislative history indicates that the 2002 amendments to SORA which, inter alia, defined the term “sexually violent offender,” and mandated lifetime registration for this group regardless of risk level, were intended to “strengthen provisions of the Sex Offender Registry to promote greater public safety,” as well as to bring New York’s statutory scheme into conformance with Federal requirements (Budget Report on Bills, Bill Jacket, L 2002, ch. 11). The defendant has not carried his burden of showing that designating him a sexually violent offender based upon his conviction of an enumerated sexually violent offense bears no rational relation to the legitimate governmental purpose of protecting the public by mandating lifetime registration for those convicted of such offenses. The offenses enumerated by Correction Law §168-a(3) as sexually violent offenses include sexual abuse in the first degree or an attempt to commit that crime. Sexual abuse in the first degree, which is classified by the Penal Law as a violent felony (see Penal Law §70.02[1][c]), is not limited to proscribing the act of subjecting another person to sexual contact by forcible compulsion (Penal Law §130.65 [1]). The offense can also be committed by subjecting two categories of particularly vulnerable victims to sexual contact the physically helpless, and children under the age of 11 (Penal Law §130.65[2], [3]). The inclusion of these categories of victims within an offense classified as a violent felony reflects a legislative judgment that those offenders who prey on vulnerable victims are as dangerous as those who employ forcible compulsion even though they may not subject their victims to physical violence. Although it is possible to commit sexual abuse or attempted sexual abuse in the first degree without subjecting a victim to physical violence, as the Court of Appeals pointed out in Knox, the legislature could have rationally concluded that the administrative burden of separating those cases in which physical violence is actually employed from those in which it is not, and the risk that some dangerous sex offenders who should be subject to lifetime registration requirements would escape proper classification, “justified a hard and fast rule, with no exceptions.” For these reasons, this court finds no merit to the defendant’s argument that designating him a sexually violent offender when he did not actually subject the victim to physical violence violates his substantive due process rights.Finally, the defendant has failed to demonstrate that SORA deprives him of procedural due process by imposing a requirement that those convicted of enumerated sexually violent offenses be designated as sexually violent offenders, and thus subject to lifetime registration. It should be noted that rather than imposing punishment for past crime, SORA is a remedial statute aimed at preventing future crime (see Matter of North v. Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745 [2007]). Thus, the procedural due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial (see People v. Parris, 153 AD3d 68, 75 [2nd Dept. 2017]). The Legislature has made a rational decision that sex offenders convicted of sexually violent offenses be subject to lifetime registration, and the designation of the defendant as a sexually violent offender, after affording him notice and an opportunity to be heard, does not violate his right to procedural due process.Accordingly, this court designates the defendant a level two sexually violent offender.This constitutes the decision and order of this court.Dated: May 4, 2018Kew Gardens, New York
