DECISION & ORDER SORA Early in the morning of March 31, 2013, the complainant Ana Moscoso brought her family’s laundry to a laundromat on Woodhaven Boulevard in Queens. After loading her laundry into washing machines, the complainant left the laundromat, and began walking to her nearby home. About a block away from the laundromat, a man grabbed the complainant from behind, put an arm around her neck and choked her, and grabbed her buttocks. The complainant struggled with her assailant and slid down to the ground to break free from him. She then began screaming, and the assailant fled. Although the complainant could not identify her assailant, surveillance camera video showed the defendant, who was working overnight at the laundromat, extend his hand toward the complainant’s lower back while she was in front of one of the machines, and later follow her as she left the laundromat and began walking home. However, the actual attack was not captured by the surveillance video.At the conclusion of a jury trial conducted in July 2013, the defendant was found guilty of sexual abuse in the first degree, criminal obstruction of breathing, and sexual abuse in the third degree. On August 15, 2013, this court sentenced the defendant to a determinate term of seven years of imprisonment for sexual abuse in the first degree, and lesser concurrent terms of imprisonment on the two remaining counts. This court also imposed a fifteen-year period of post-release supervision. On September 16, 2013, the defendant filed a notice of appeal. The Appellate Division, Second Department, granted the defendant poor person relief and assigned counsel to represent him on appeal. However, the defendant’s direct appeal remains pending. In addition, the defendant has appealed from an order dated December 20, 2017, which denied his motion pursuant to CPL 440.30(1-a) for DNA testing of the clothing the complainant was wearing at the time of her assault. The defendant’s appeal from the December 2017 order also remains pending, and has been consolidated with his direct appeal.In anticipation of the defendant’s release from incarceration, on December 27, 2018, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (RAI) which scored the defendant 80 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 10 points under risk factor 1 for the use of forcible compulsion, 5 points under risk factor 2 for sexual contact with the victim over clothing, and 20 points under risk factor 7 because the victim was a stranger. In the criminal history section of the RAI, the defendant was additionally scored 30 points under risk factor 9 for a prior violent felony conviction, and 15 points under risk factor 11 for a prior history of drug or alcohol abuse. The Board did not recommend a departure from the defendant’s presumptive risk level. 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).In the accompanying Case Summary, the Board noted that when interviewed for the preparation of a pre-sentence report, the defendant continued to deny his guilt. The defendant also denied his guilt upon his admission to prison. However, in view of the defendant’s completion of the DOCCS Sex Offender Counseling and Treatment Program in October 2018, the Board deemed him to have accepted responsibility for his offenses. The Board also stated that it considered the defendant’s disciplinary record while confined to be satisfactory, despite the fact that it included three Tier II incidents and a Tier III incident for “drug use” in January 2018.On February 13, 2019, the People served the defendant with notice pursuant to Correction Law §168-d(3) of their intent to seek a determination that he is a level three (high risk) offender, and submitted their own risk assessment instrument which scored the defendant 100 points, 20 points higher than the Board’s total. In their notice, the People argued that the defendant should additionally be scored 10 points under risk factor 12 for his failure to accept responsibility for the offense, and 10 points under risk factor 13 for unsatisfactory conduct while confined. Although the defendant would remain a presumptive level two offender even with the addition of 20 points, the People argued that an upward departure was warranted because the RAI did not capture the full nature of the conduct underlying the defendant’s prior violent felony conviction. The People noted that the defendant’s prior violent felony conviction for manslaughter in the first degree stemmed from his conduct in killing his aunt by stabbing her 32 times and maintained that there was a sexual component to the killing because the defendant cut his aunt’s clothing off with a knife and threatened to rape her. Furthermore, the defendant was completely unremorseful for the killing. The People also emphasized that the defendant committed the instant offense while under parole supervision, and despite having completed sex offender counseling and treatment while incarcerated on the manslaughter conviction.In response, the defendant’s attorney submitted a letter to the court in which she opposed the People’s request to adjudicate the defendant a level three offender and sought a downward departure from a risk level two to a risk level one. Addressing the People’s argument that the defendant should be scored 10 points under risk factor 12 for failure to accept responsibility, counsel submitted that it is error to assess such points when a defendant’s direct appeal is pending. In this regard, counsel pointed out that the defendant has maintained his innocence throughout all proceedings in this case and should not be required to choose between being assessed points for failure to take responsibility or accepting responsibility and possibly incriminating himself if his conviction were to be reversed on appeal. Counsel also contended that the defendant should not be scored 10 points under risk factor 13 for unsatisfactory conduct while confined because his three Tier II violations and one Tier III violation fall far short of the numerous or serious disciplinary violations contemplated by the Board as warranting points. Counsel added that since the defendant’s single Tier III violation was committed in January 2018, over one year ago, it could not be considered recent. With respect to the People’s request for an upward departure, counsel maintained that the defendant’s manslaughter conviction cannot be considered an aggravating factor because it was adequately taken into account by the assessment of 30 points under risk factor 9 for a prior violent felony conviction. Counsel also stressed that the defendant was not indicted for any sex crime in relation to the 1990 manslaughter, and that he took responsibility for that crime nearly 30 years ago by pleading guilty to a B violent felony in exchange for a substantial sentence. Finally, counsel argued that the defendant should be granted a downward departure to a level one because he is 48 years old, and the RAI does not take into account the body of research indicating that the risk of committing sex offenses declines with advanced age. Counsel also noted that following the defendant’s release, he will have available to him the Appellate Advocates’ Re-Entry Program. Counsel further pointed out that the defendant’s point score of 80 as calculated by the Board is at the very low end of the level two range. In support of the defendant’s departure request, counsel submitted exhibits including a lengthy article published in 2009 which reported on a study of 468 male sex offenders and concluded that recidivism in sex offenders decreases with the age of the offender at the time of his release from custody.At the SORA hearing conducted on February 28, 2019, the prosecutor argued that the defendant should be scored an additional 10 points under risk factor 12 for failure to take responsibility because he had repeatedly made statements affirmatively denying his guilt.1 He also argued that the defendant should be scored an additional 10 points under risk factor 13 because he had incurred disciplinary infractions while confined. The prosecutor further urged the court to grant an upward departure to a level three, citing the brutal nature of the defendant’s killing of his aunt, and the circumstances indicating that there was a sexual component to the crime. The defendant did not challenge the 80 points assessed against him on the RAI prepared by the Board. However, the defendant opposed the People’s request that he be scored additional points under risk factors 12 and 13, and the request for an upward departure, for the reasons outlined in the letter submitted by counsel prior to the hearing. The defendant also sought a downward departure to a level one, maintaining that his age, the availability of the Appellate Advocates re-entry program, and his relatively low score were mitigating factors. At the conclusion of the hearing, the court reserved decision. For the reasons that follow, the court now grants the People’s request for an upward departure and designates the defendant a level three sexually violent 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]).The court has been provided with the risk assessment instrument (RAI) and Case Summary prepared by the Board, and the RAI prepared by the People, and will examine each risk factor for which points are sought and determine the defendant’s score (see Correction Law §168-n [1], [2]). Both the Board and the People score the defendant 10 points under risk factor 1, which assesses 10 points for the use of forcible compulsion. The assessment of 10 points under risk factor 1 is uncontested, and supported by reliable evidence, including the Case Summary and Probation Department presentence report, which indicate that the defendant grabbed the complainant from behind, placed his arm around her neck, and choked her. The Board and the People also score the defendant 5 points under risk factor 2 for sexual contact over clothing, and 20 points under risk factor 7 because he and the complainant were strangers. These points are also uncontested and supported by reliable evidence. Similary uncontested and supported by reliance evidence are the 30 points scored by the Board and the People for the defendant’s prior violent felony conviction, and 15 points scored under risk factor 11 for the defendant’s history of drug and alcohol abuse.The court now turns to the additional points sought by the People on their RAI. The defendant contests the assessment of 10 points under risk factor 12 for failure to accept responsibility, arguing that it would be improper to require him to accept responsibility and make potentially incriminating statements when he has a direct appeal and an appeal from the denial of a CPL 440.30 motion pending, and intends to raise issues that could result in a new trial. In support of his position, the defendant cites People v. Britton (148 AD3d 1064 [2nd Dept. 2017], affd 31 NY3d 1019 [2018]). In Britton, the defendant took the stand at trial and denied that he had committed any of crimes with which he was charged. The jury acquitted the defendant of rape in the first degree and several other felonies, but convicted him of one count of sexual abuse in the second degree, a misdemeanor. During the SORA hearing, which occurred simultaneously with his sentencing, the defendant invoked his Fifth Amendment privilege against self-incrimination. In holding that it was improper to assess the defendant points for failure to take responsibility under these circumstances, the Second Department observed that at the SORA hearing, the defendant was “presented with the choice of either exercising his Fifth Amendment privilege against self-incrimination and appealing his conviction with the hope of dismissal of the remaining criminal charge against him or a new trial on that charge but being assessed 10 points under risk factor 12, or, on the other hand, accepting responsibility and possibly incriminating himself if his conviction was reversed on appeal resulting in a new trial”. The People point out that there are factual distinctions between the instant case and Britton, including the fact that here the defendant has made statements affirmatively declaring his innocence rather than invoking his Fifth Amendment privilege. However, the quandary over which the Second Department expressed concern in Britton is the same. Requiring a defendant who has maintained his innocence to admit responsibility while his direct appeal is pending subjects the defendant to the possibility of incriminating himself if his appeal is successful and he is granted a new trial. Thus, this court finds the rationale of Britton controlling, and will not impose points for the defendant’s failure to accept responsibility.The People also seek the imposition of 10 points under risk factor 13 for unsatisfactory conduct while confined. In its Guidelines, the Board explains that risk factor 13 “looks to the offender’s conduct while in custody…as a predictor of future behavior” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 21 [2006]). According to the Guidelines, points may be assessed in this category where an offender “has numerous citations for disciplinary violations,” or accrues disciplinary dispositions of a serious nature because such misconduct “bodes ill for his return to the streets” (Guidelines at 21). An offender’s adjustment to confinement in prison is considered by the Board to be unsatisfactory “if he has a recent Tier Three disciplinary violation” (Guidelines at 21). Here, the Board noted in its Case Summary that the defendant’s disciplinary record while incarcerated included three Tier II incidents and one Tier III incident for drug use which occurred on January 22, 2018. However, the Board deemed the defendant’s disciplinary record “satisfactory” and declined to score him points under risk factor 13. At the hearing, neither the prosecutor or defense counsel provided the court with any information concerning the defendant’s three Tier II incidents. The only information provided regarding the defendant’s Tier III incident at the hearing came from defense counsel, who stated that it involved marijuana use, and argued that it could not be considered “recent” because it occurred in January 2018. The court notes that after the hearing, defense counsel additionally submitted a copy of the misbehavior report associated with the Tier III incident, which confirms it involved marijuana use. Although the defendant’s conduct while confined clearly was not exemplary, given the lack of information concerning the defendant’s Tier II violations, and the fact that his only Tier III violation was committed over one year ago, the court cannot conclude that his disciplinary infractions are of a recent and serious enough nature to warrant the imposition of points under Risk factor 13.Accordingly, the court scores the defendant a total of 80 points, which falls within the level two (75 to 105 points) classification for moderate risk offenders.With respect to the People’s request for an upward departure, the SORA Guidelines acknowledge that an objective RAI, “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 an offender’s presumptive risk level where “there exist an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not taken into account by the guidelines” (id.; see People v. Gilliotti, 23 NY3d 841, 861 [2014]). Where the People seek an upward departure, they must identify an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the RAI, and prove the facts in support of the aggravating factor by clear and convincing evidence (see People v. Gillotti, 23 NY3d at 861; People v. Smith, 158 AD3d 654 [2nd Dept. 2018]; People v. Woodson, 156 AD3d 832 [2nd Dept. 2017]). Once this burden is satisfied, the court has the discretion to grant an upward departure if the factor indicates that the point score on the risk assessment instrument has resulted in an underassessment of the offender’s actual risk to the public (see People v. Gillotti, 23 NY3d at 861; People v. Smith, 158 AD3d at 654).Under risk factor 9 of the RAI, an offender can be assessed up to 30 points based on the number and nature of the offender’s prior crimes. The 30-point maximum is reserved for offenders whose criminal history includes a prior conviction of a violent felony, sex crime, or endangering the welfare of a child. Here, the defendant has been scored 30 points under risk factor 9 for a prior violent felony conviction, namely, his August 1990 conviction of manslaughter in the first degree. However, in this court’s view, the assessment of 30 points for this risk factor fails to adequately take into account the extreme brutality and sexualized nature of that offense and the utter lack of remorse expressed by the defendant for it. The defendant’s prior violent felony conviction stems from the March 1990 killing of his 51-year-old aunt. According the Board’s Case Summary, defendant, who was then 19 years old, went to his aunt’s residence accompanied by a friend. The defendant took his aunt into the kitchen, put her in a headlock, and began punching her. He then pulled out a butterfly knife and held it on her while he tied her up. The defendant gave the knife to his friend and asked his friend to take his aunt’s pants off. After the defendant’s friend left with the knife, the defendant took his aunt to her bedroom, and cut off her clothes with a steak knife he had removed from the kitchen. He told her that he would not rape her and would leave her alone if she told no one about the incident. When the defendant’s aunt said that she would tell his father, the defendant held a pillow over her head and stabbed her 32 times. Although the defendant pleaded guilty to manslaughter in the first degree, when interviewed for preparation of the presentence report, he stated, “I have no remorse, I hated my aunt. My aunt used to stare at me and I feel like killing people who stare at me.” The Case Summary further indicates that while incarcerated for the manslaughter, the defendant was referred to a six-month long Sex Offender Counseling and Treatment Program, which he completed on October 8, 2006. The defendant was released to parole on February 4, 2009 and was still under supervision when he committed the subject sex offense.While the crime of manslaughter is not a sex offense, the facts underlying the defendant’s killing of his aunt are extremely disturbing and point to a sexual motivation for his violence. Given the nature of the crime, it is not surprising that the defendant was referred to a Sex Offender Counseling and Treatment Program in 2006, while serving his manslaughter sentence. Although it is undisputed that the defendant completed that program, he did not genuinely benefit from it as demonstrated by the fact that he committed the instant sex offense while still under parole supervision. Thus, the court finds that the People have demonstrated the existence of aggravating factors not fully captured by the RAI (see People v. Armstrong, 166 AD3d 1532 [4th Dept. 2018] [violent manner in which the defendant committed a prior felony sex offense constituted an aggravating factor not adequately taken into account by the risk assessment guidelines]; People v. Perez, 143 AD3d 521 [1st Dept. 2016] ["Although defendant was assessed the maximum amount of points for his criminal history, the risk assessment instrument did not reflect the serious and violent extent of that history"]; People v. Hutchinson, 132 AD3d 606 [1st Dept. 2015] [upward departure to a level three warranted where the risk assessment instrument did not adequately take into account the seriousness of the defendant's criminal history and misconduct while under parole supervision, including his commission of a murder within eight months of his release form incarceration on a 1976 rape conviction]; People v. Padin, 122 AD3d 600 [2nd Dept. 2014] [extreme brutality and violence of the defendant's conduct in the commission of the underlying crime constituted an aggravating factor which tended to establish a higher likelihood of reoffense]; People v. Faver, 113 AD3d 662 [2nd Dept. 2014] [upward departure properly granted where, inter alia, several of the defendant's prior offenses, while not classified as sex crimes, involved a sexual component]). Under these circumstances, classification of the defendant as a level two offender would result in an underassessment of his actual risk to the public. Accordingly, the court exercises its discretion to grant an upward departure and will classify the defendant as a level three sex offender.The court further finds that the defendant has failed to demonstrate that he is entitled to a downward departure based on mitigating circumstances. A defendant 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. Saintilus, _AD3d_ 2019 NY Slip Op 01111 [2nd Dept. February 13, 2019]; People v. Wyatt, 89 AD3d 112, 128 [2nd Dept. 2011]). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an over-assessment of the defendant’s dangerousness and risk of sexual recidivism (see People v. Gillotti, 23 NY3d at 861; People v. Kaiser, 168 AD3d 1002 [2nd Dept. 2019]).Here the defendant, who is presently 48 years old, relies primarily upon his age as a basis for a downward departure. Although “advanced age” is a mitigating factor which may constitute a basis for a downward departure, the defendant was 42 years old at the time he committed the subject sex offense, and has failed to demonstrate that his present age would, in and of itself, reduce his risk of reoffending (see People v. Kaiser, 168 AD3d at 1002; People v. Munoz, 158 AD3d 1088 [2nd Dept. 2017]; People v. Rocano-Quintuna, 149 AD3d 1114 [2nd Dept. 2017] [the defendant, who committed some of the subject offenses when he was 45 years old, failed to demonstrate that his age at the time of the SORA determination, 49 years old, resulted in the over-assessment of his risk to public safety]To the extent that the defendant relies on the fact that Appellate Advocates offers a Re-Entry program which provides services to help offenders adjust upon return to the community, the court notes that release environment is a factor already taken into account by the Guidelines (see People v. Sawyer, _AD3d_, 2019 NY Slip Op 01112 [2nd Dept. February 13, 2019]; People v. Robinson, 145 AD3d 805 [2nd Dept. 2016]). Moreover, the defendant has not indicated that he would be willing to take advantage of any of the services offered, and his participation in such services would be entirely voluntary. Finally, the court is not persuaded that the fact that the defendant’s point total falls at the low range of a level two is, in and of itself, a mitigating factor.For the reasons outlined above, the court grants the People’s request for an upward departure, denies the defendant’s request for a downward departure, and designates the defendant a level three offender. Since the defendant was convicted of sexual abuse in the first degree, a crime defined as a sexually violent offense under SORA (see Correction Law 168-a[3][a]; 7[b]), he must also be designated a sexually violent offender (see People v. Bullock, 125 AD3d 1 [1st Dept. 2014]; People v. Lockwood, 308 AD3d 640 [3rd Dept. 2003]).This constitutes the decision and order of this court.Dated: March 13, 2019Kew Gardens, New York
