The defendant, Michael Allen, pled guilty on September 22, 1992 to Attempted Murder in the Second Degree (PL §110.00/125.25) (Indictment Number 2508/1990) and Rape in the First Degree (PL §130.35-1) (Indictment Number 1394/1990). On October 20, 1992, he was sentenced to indeterminate terms of imprisonment of three and one-half to ten years (3.5 to 10 years) and two to six years (2 to 6 years), respectively, with those sentences to run concurrently with each other, as well as. the imposed sentences on his conviction after a jury trial for Murder in the Second Degree (PL §125.25). Criminal Possession of a Weapon in the Second Degree (PL §265.03). and Escape in the First Degree (PL §205.15) wherein he was sentenced to concurrent indeterminate terms of imprisonment of twenty-five years to life (25 years to life) for the murder conviction, five to fifteen years (5 to 15 years) for the weapon conviction, to run consecutively, to two and one-third to seven years (2 1/3 to 7 years) for the escape conviction (Indictment Number 5891/1989). As a result, the aggregate sentence imposed was twenty-seven and one-third to life (27 1/3 to life). Defendant’s scheduled release date from incarceration was January 29, 2019.1 Upon his release, defendant must register in New York State under the Sex Offender Registration Act (hereinafter SORA) for his first-degree rape conviction.A SORA Hearing was held before this Court on March 27, 2019 and May 29, 2019.2 The Court heard oral arguments made by Assistant District Attorney George Kanellopoulos. counsel for defendant Jeffrey D. Cohen. Esq., and defendant. For the reasons set forth below, the Court finds defendant to be a risk level-Ill with a designation as a sexually violent offender.Findings of FactThe Court reviewed the amended case summary and risk assessment instrument (hereinafter RAI) scored by the Board of Examiners of Sex Offenders (hereinafter Board), as well as, the indictment, grand jury minutes3 and plea minutes for the rape in the first-degree conviction (Indictment Number 1394/90), defendant’s criminal history, and defendant’s application in support of a downward departure, which included attachments from his motion dated January 21, 2019, and his SORA motion dated February 11, 2019, which was introduced into evidence, as Defendant’s Exhibit A.The defendant’s risk factors scored by the Board are as follows:I. CURRENT OFFENSES Points1. Use of Violence 302. Sexual Contact with Victim 253. Number of Victims (two) 204. Duration of Offense Conduct with Victim 205. Age of Victim (11 through 16) 207. Relationship with Victim 20II. CRIMINAL HISTORY Points8. Age at first sex crime (20 or less) 109. Number and nature of prior crimes 15TOTAL RISK FACTOR 160Defendant was assessed zero points as to the remainder of all other factors. As a result, the Board determined that defendant was a presumptive level-Ill sex offender with a designation as a sexually violent offender.At the SORA Hearing, defendant made several arguments for a downward departure. As an initial matter, the amended case summary reflects that, defendant pled guilty to one count of Rape in the First Degree (PL §130.35-1) (Indictment Number 1394/90) to satisfy two additional charges of Rape in the First Degree (PL §130.35-1) among other related offenses. The facts for the aforementioned cases are as follows: On November 25, 1988. at 214-25 111th Road in Queens Village. Queens County, defendant raped a 15 years old complainant (hereinafter victim one), at knifepoint. Approximately one year later, on October 29, 1989, at 102-22 185th Street in Hollis, Queens County, the defendant displayed guns and forcibly raped an 18 years old complainant (hereinafter victim two). According to victim two, approximately one month earlier, on or about September 25-29. 1989, the defendant also raped her in the same manner.Despite the above-stated crimes, multiple rapes committed against two victims, ages 15 and 18 years old, defendant contends that he is only guilty as to one rape — for 18 years old victim two — since he pled guilty to one count of the indictment, count one, and not to counts two and thirteen.4 The Court rejects this argument. A review of the plea minutes do not support that any counts were dismissed nor that this result was agreed upon by the parties. Therefore, defendant is scored for the commission of two or more rapes and the age of one of the victims being 15 years old.Conclusions of LawThe Sex Offender Registration Act. Correction Law Art. 6-C, was enacted in an attempt to address the need to protect the public from the risk of repeat offenses by perpetrators of sex crimes which are deemed inherently susceptible to recidivism. See People v. Brown, 302 A.D.2d 919 (4th Dept. 2003): People v. Jimenez, 178 Misc. 2d 319, 321 (Sup. Ct. Kings Co. 1998). The SORA and Risk Assessment Guidelines were created by means of predicting and controlling recidivism rates among sex offenders by identifying a set of objective factors correlative with both the offender’s likelihood of re-offense and the level of harm inflicted by a re-offense. See Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 2 (November 1997). SORA requires that sex offenders be assessed a “risk level” at the time of sentence or prior to release from jail. People v. Jimenez. 178 Misc. 2d at 321. The statute implements a registration and notification system for individuals convicted of certain sex offenses based on a three-tier classification system. C.L. §1168-I (5)(6); People v. Brown, 302 A.D.2d 919 (4th Dept. 2003).Under SORA. a “sex offender” is any person convicted of a “sex offense” or a “sexually violent offense.” C.L. §168-a (1). Sex offenses include, inter alia, convictions for Rape in the Second Degree or Third Degree, Sodomy in the Second or Third Degree, or Sexual Abuse in the Second Degree, and convictions for attempts. C.L. §168-a (2) (citing P.L. §§130.25, 130.30, 130.40, 130.45 and 130.60). Sexually violent offenses include convictions for first-degree rape, first-degree sodomy, and first-degree sexual abuse. C.L. §168-a (3) (citing P.L. §§130.35, 130.50 and 130.65).In accordance with Correction Law §168-I, the Board of Sex Offenders developed guidelines and procedures to assess the risk of a repeat offense by a sex offender and the threat posed to the public safety. See Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 1. The Board acts in an advisory capacity and makes a recommendation on the likelihood of recidivism by categorizing the defendant as a level one risk (low risk), level two (moderate risk) and level three (sexually violent predator). See C.L. §168-I (5) (6); People v. Brown, 302 A.D.2d at 920; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 1. The offender’s risk level determines the amount of information that can be disseminated to the public under Sora’s notification procedures. See People v. Jimenez, 178 Misc. 2d at 321; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 1. Moreover, a court is not bound by the numerical score or the Board’s recommendation, and may depart from those recommendations based upon the specific facts as well as the totality of the circumstances. People v. Victor R., 186 Misc. 2d 28 (Sup. Ct. Bronx Cty. 2000); People v. Marinconz, 178 Misc. 2d 30 (Sup. Ct. Bronx Cty. 1998).In establishing an offender’s appropriate risk level under SORA, “[t]he People “bear the burden of proving the facts surrounding the determinations” by clear and convincing evidence.” People v. Pettigrew, 14 N.Y.3d 406, 408, quoting Correction Law §168-n [3]; see People v. Suarez, 163 A.D.3d 884. 884. “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 counsel, case summaries prepared by the Board of Examiners of Sex Offenders…. or any other reliable source, including reliable hearsay.” People v. Crandall, 90 A.D.3d 628, 629; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006] and People v. Mingo, 12 N.Y.3d 563, 571-572.In addition, the court may exercise its discretion in denying the defendant’s request for a downward departure from his presumptive risk level designation. “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 re-offense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the…Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence.” People v. Garner, 163 A.D.3d 1009. 1009 [internal quotation marks omitted]; see People v. Gillotti, 23 N.Y.3d 841, 861; People v. Wyatt, 89 A.D.3d 112, 128; see also Guidelines at 4. “If 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.” People v. Garner, 163 A.D.3d at 1009: see People v. Gillotti, 23 N.Y.3d at 861. Here, the alleged mitigating circumstances identified by the defendant either were adequately taken into account by the Guidelines or, under the totality of the circumstances, do not warrant a departure to avoid an overassessment of the defendant’s dangerousness and risk of sexual recidivism. See People v. Gillotti, 23 NY3d at 861; People v. Baker, 163 A.D.3d 1007, 1008).SORA HearingAt the SORA Hearing, the Court made the following findings with respect to the risk factors at issue:First, as to Risk Factor 1 (Use of Violence — Armed with a Dangerous Instrument), the Board awarded 30 points. Defendant claims he should be scored 10 points since his plea allocution was for forcible compulsion and not the use of a dangerous instrument. However, the case summary supports that on October 29, 1989, 18 years old complainant, victim two, was walking home when defendant, who was a passenger in a taxi cab. approached her. He displayed three guns from a shoulder holster and demanded that she get into the cab. Defendant took her to his apartment located at 102-22 185th Street in Hollis. Queens County, and forced her to get undressed and raped her. Furthermore, victim two, stated that approximately one month earlier, on or about September 25-29, 1989, defendant raped her in the same manner. According to victim two, she was afraid to resist because defendant knew where she resided and she heard defendant allegedly killed his father. According to the case summary, the indictment covered both incidents involving victim two.At the hearing, defendant claims he used force by “mean-mugging” the victim. However, he then admitted to the possession of guns but takes issue with the number of guns. According to Penal Law Section 130.00-8. “forcible compulsion.” means to compel by either (a) use of physical force: or (b) a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped. Nonetheless, whether it was two guns or three, defendant was armed with a dangerous instrument and the Court agrees with the Board’s assessment of 30 points.Second, as to Risk Factor 2 (Sexual Contact with Victim — Sexual Intercourse, Deviate Sexual Intercourse or Aggravated Sexual Abuse), the Board awarded 25 points. Here, the defendant did not challenge this factor and/or points at the hearing. Similarly, the Court agrees with the Board’s assessment of 25 points.Third, as to Risk Factor 3 (Number of Victims — Two), the Board awarded 20 points. Defendant argues that the plea minutes supports a guilty plea as to one complainant, victim two, and therefore, he should not be scored additional points. However, the case summary, as well as the grand jury minutes, contradict that contention. Instead, the relied upon documents support three rapes committed by the defendant against two victims. Therefore, the Court agrees with the Board’s assessment of 20 points.Fourth, as to Risk Factor 4 (Duration of Offense Conduct with Victim — Continuing Course of Sexual Misconduct), the Board awarded 20 points. Defendant argues there was no course of conduct since his guilty plea was for one complainant, victim two. However, a continuing course of sexual misconduct with a least one victim warrants an assessment of 20 points. Here, defendant raped victim two twice. And regardless of his contention, that he did not rape victim one, his guilty plea to one count of first-degree rape covered both incidents involving the same victim. Therefore, the Court agrees with the Board’s assessment of 20 points.Fifth, as to Risk Factor 5 (Age of Victim — 11 through 16 years old), the Board awarded 20 points. Again, defendant makes the same argument, that his guilty plea was for 18 years old complainant, victim two, and therefore, no points should be awarded. Again, the case summary and grand jury minutes support rapes committed by defendant against two victims, one of who, was 15 years old at the time of the crime. Therefore, the Court agrees with the Board’s assessment of 20 points.Sixth, as to Risk Factor 7 (Relationship with Victim — Stranger or Established for Purpose of Victimizing or Professional Relationship), the Board awarded 20 points. Defendant claims that no points should be awarded since he knew the victim. At the hearing, defendant alleged that he sold crack to victim two. However, just because defendant knew where victim two lived and/or she allegedly purchased drugs from him, does not establish a relationship. Therefore, the Court agrees with the Board’s assessment of 20 points.Seventh, as to Risk Factor 8 (Age at First Sex Crime — 20 years old or less), the Board awarded 10 points. Defendant claims that at the time of his first sex offense, he was 17 years old. Despite the criteria being 20 years old or less, as the relevant age for the commission of his first sex crime, defendant contends that no points should be awarded due to his status as a minor since according to defendant, he was under the age of majority — 18 years old. Defendant’s argument lacks merit and the Court agrees with the Board’s assessment of 10 points.Lastly, as to Risk Factor 9 (Number and Nature of Prior Crimes — Prior History/Non-Violent Felony), the Board awarded 15 points. Here, unlike risk factor 8, defendant was a juvenile delinquent during the commission of his prior crime. According to the amended case summary, defendant’s criminal history commenced on March 19, 1987, at the age of 15 years old, when was adjudicated a juvenile delinquent in Queens County, Family Court for Grand Larceny in the Fourth Degree (‘E’ Felony). For the aforementioned incident, defendant was 14 years old when he beat a male victim with a bat, causing injuries to his elbow, and then stole his bicycle. At the hearing, defendant argues that his juvenile delinquent adjudication should not be considered at the SORA Hearing because it conflicts with the Family Court Act. The Court, which addresses this factor further below, agrees with the Board’s assessment of 15 points. However, the Court will not award defendant any points under this factor.According to the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, the term “crime” includes criminal convictions, youthful offender adjudications and juvenile delinquency findings. See Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, page 6.10. The Guidelines, although not extensive in their examples, note that these determinations are reliable indicators of wrongdoing, and should be considered in assessing an offender’s likelihood of re-offense and concomitant danger to public safety. Id. It should be noted, that in view of this definition and reasoning for its use, the Court concurs with the Board’s assessment of 15 points under factor 9. Furthermore, in People v. Francis, 30 N.Y.3d 737 (2018), the Court of Appeals in addressing youthful offender adjudications for SORA, considered the prior bad act for the offender’s likelihood of re-offense and danger to the public.However, in assessing risk factor 9. the Court relies upon People v. Campbell, 98 A.D.3d 5 (2d Dept. 2012), and subsequent cases thereafter, People v. Ruland, 128 A.D.3d 1036 (2d Dept. 2015): People v. Brown, 148 A.D.3d 1705 (4th Dept. 2017) and People v. Gibson, 149 A.D.3d 1567 (4th Dept. 2017). wherein the Appellate Division determined that consideration of juvenile delinquent adjudications in SORA proceedings conflicted with Family Court Act §381.2(1) which provides that, neither the fact that a person was before the Family Court in a juvenile delinquency proceeding for a hearing, nor any confession, admission, or statement made by such a person to Family Court, or to any officer thereof in any stage of that proceeding, is admissible in any other court. Furthermore, in Campbell, the appellate court held that the sole statutory exception which permits consideration of juvenile delinquency adjudications by a court — imposing sentence upon an adult §381.2 (2) — is not applicable in SORA hearings since the proceedings are civil in nature and risk level determination is not a sentence (CPL §1.20(14)). Id. at 13. Consequently, no points will be scored for defendant’s juvenile adjudication under risk factor 9. As a result, defendant’s total risk factor score is 145 points.Accordingly, the Court finds defendant to be a risk level-III with a designation as a sexually violent offender for his first-degree rape conviction (PL §130.35-1) in accordance with Correction Law §168-3 [3]. Therefore, defendant must register as a high risk to the community.The foregoing constitutes the decision and order of this Court.Dated: June 10, 2019Kew Gardens, New York
