Carlton Maus, the Defendant herein, was convicted on December 1, 2006 upon a plea of guilty to Superior Court Information #335 W-06 to two (2) counts of Rape in the First pursuant to PL 130.35(3) for engaging in sexual relations with his granddaughter when she was nine (9) years old.Prior to sentencing, this Court ordered a Pre-sentence Investigation Report (PSI), which was completed by Investigating Probation Officer Sandra Doe on January 17th, 2007. The Defendant was interviewed for the PSI. The Defendant admitted to engaging in forceful sexual intercourse with the child. In the PSI, the Defendant stated that the nine-year old female victim had made advances toward him. Following an exchange with his attorney the defendant stated “In the beginning of July, I had sexual intercourse and a couple of weeks later. I knew it was wrong. I want to get the help I need in prison and want to spare my granddaughter any more hurt.”The Probation Officer indicated that “the Defendant did not state he was remorseful for this crime, except when prompted by his attorney. He also did not appear to accept responsibility for these rapes as was demonstrated by his initial statements to this department.” The Officer went on to state “by most accounts, the defendant appears to be an upstanding citizen in the community.” He had successful long-term employment, a forty-year marriage and he is noted to have been helpful to his friends and neighbors.”The Defendant was thereafter sentenced to a determinate term of fifteen (15) years of incarceration concurrent with each count followed by five (5) years of post-release supervision. The Department of Corrections and Community Supervision is releasing the Defendant on his conditional release date of August 1st, 2019 and it is anticipated that he will be supervised on a specialized Community Supervision caseload until the maximum expiration of his sentence on August 1st, 2024.The Board of Examiners of Sex Offenders (hereinafter, “Board”) assessed Defendant seventy-five points under the SORA Risk Assessment Instrument (hereinafter, “RAI”), which was completed on May 1st, 2019. This assessment is based upon the Defendant subjecting the victim to sexual intercourse, deviate sexual intercourse or aggravated sexual abuse [25 points] in addition to a continued course of sexual misconduct [20 points] and the age of the victim being under 10 years or less [30 points].As a result, the Board has recommended that this Court find Defendant to be a Level Il (Moderate Risk to reoffend) Sex Offender. The Board further stated that a departure from this risk level was not warranted.On July 10th, 2019, this Court conducted a SORA (Sex Offender Registration Act) hearing in connection with the Defendant’s prospective release from State’s Prison incarceration, following his convictions and sentences for two (2) counts of Rape in the First Degree pursuant to PL 130.35(3). The documents entered into evidence at trial included the Defendant’s Notice of Risk Assessment Classification proceeding documents; including the Sex Offender Registration Act Risk Assessment Instrument and a Case Summary. At the SORA hearing and at all times relevant to these proceedings, the Defendant was represented by counsel.The People of the State of New York by way of James Farrell, Sullivan County District Attorney, seeks an upward departure to a Level Ill (High risk to reoffend) Sex Offender determination based, in part, on the fact that the Defendant’s RAI score was seventy-five (75) points, which the People believe does not accurately reflect the fact that the Defendant had sex with his own granddaughter as opposed to a complete stranger. The People argue that the Risk Assessment erroneously adds twenty (20) points to the Risk Assessment if the victim is a “Stranger” but does not add any points for the fact that the victim is related by blood to the Defendant1.The District Attorney made a very passionate and emotional argument based on his belief that the Risk Assessment should add points for a familial relationship between Defendant and victim and not the other way around in which points are added for victimizing a stranger. In his argument he makes reference to the nature of the power and trust that is inherent in a relationship between a grandfather and granddaughter. The District Attorney doe not dispute the accuracy of the case summary.The Defendant’s counsel argues that the Defendant is now 73 years old and has served 15 years and paid his debt to society. That this is the only criminal conviction of this Defendant and that the Defendant was arrest-free and conviction- free for the 60 years prior to this incident. The Defense further argues that even if you were to add 20 or 30 points extra to the Defendant’s Risk Assessment as the District Attorney suggests for the familial relationship of the victim and the Defendant in this case, the Defendant would still only be a Level Il offender because a Level Ill offender requires a minimum of one hundred ten (1 10) points.The Defense further argues that during the Defendant’s imprisonment, the Defendant completed a Treatment program. In conjunction with his participation with that program, the Defendant accepted responsibility for his actions. Lastly, the Defense argues that the Defendant’s conduct while imprisoned was deemed as satisfactory, with the Defendant having no disciplinary sanctions.The People recommended that this Court assess Defendant as a Level Ill (High risk to reoffend) Sex Offender contrary to the Board’s recommendation. The People contend that the Board’s recommendation is inappropriate considering the familial relationship between the victim and the Defendant. The Defense argues that the Court assess Defendant as a Level Il (Moderate risk to reoffend) Sex Offender pursuant to the Board’s recommendation. The Defense contend that the Board’s recommendation is appropriate because it has taken into consideration many factors related to this Defendant and this case.Pursuant to Corrections Law 168-n(3), in making a determination as to the appropriate Sex Offender Risk Level, a Court shall review “any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations. “Here, the assessment of points was supported by clear and convincing evidence in the record, including information in the case summary…’t); People v. Whaley, 38 AD3d 1106, 1007 (3d Dept 2007), ["On this appeal, defendant maintains that he was improperly assessed points under multiple categories on the risk assessment instrument used by the County Court to determine his classification. Inasmuch as County Court's determination is supported by clear and convincing evidence, including the case summary, pre-sentence investigation report and victim impact statement, we disagree and affirm.The Appellate Courts have consistently upheld SORA proceeding determinations based upon information contained in case summaries prepared by the Board and PSI reports prepared by the probation department for use at sentencing. People v. Mingo, 12 NY3d 563 (Ct App 2009). "The Board of Examiners of Sex Offenders is charged with producing accurate case summaries as an integral part of its function and has expertise culling through records to produce a concise statement of the factual information relevant to a defendant's risk of re-offense." Id. Further, "[a] mere mechanical application of the Guidelines is not the appropriate manner in which to classify this offender. As risk assessment determinations become routine, the sentencing court must continue to fully exercise its independent judgment to ensure an accurate final judicial determination given the importance of the individual and public interests involved in designating an appropriate risk level.With respect to upward departures from the presumptive sex offender risk level, the threshold condition triggering the court’s exercise of discretion is twofold: (l) as a matter of law, the cited aggravating factor must tend to establish a higher likelihood of re-offense or danger to the community and be of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines; and (2) the people must prove the facts in support of the aggravating factor by clear and convincing evidence.Although the District Attorney made an impassioned plea that this Defendant should be assessed at a higher risk level based upon his familial relationship with the victim, this argument is not supported by the Law2. In fact, there is clearly no point valuation in the Risk Assessment that would add points to the Defendant’s Risk Assessment based upon his close family relationship with the victim. Rather than the guidelines failing to adequately take into account the familial relationship it would appear that on the contrary one can only assume that the fact that points are added for sexual assault with a stranger means that the Risk Assessment has taken into account the presumption that those who sexually assault a stranger are more likely to re-offend than those who are caught engaging in a sexual assault against a family member. The People have therefore failed to set forth any aggravating factor which would support an upward deviation from the Board’s recommendation. It is pertinent to note here, that were the court to add 20 points to the Risk Assessment of this Defendant based upon the familial relationship, the Defendant would still be classified as a Level Il (moderate risk to reoffend.)As such, this Court properly considered the Defendant’s RAI and Case Summary, and the Defendant’s PSI when determining that deeming the Defendant as a Level Il (Moderate risk to reoffend) Sex Offender is appropriate. See, People v. Mitchell, 300 AD2d 377, 377-378 (2d Dept 2002), Iv denied 99 NY2d 510 (2003) [“The hearing court properly relied upon its recollection of the plea proceeding, the pre-sentence report, and the case summary of the Board of Examiners of Sex Offenders (hereinafter the Board).Based on the foregoing, it is herebyORDERED AND ADJUDGED that pursuant to Corrections Law, 168 (d) 1 (a) thisCourt certifies that Defendant is a sex offender required to register by the New York State Sex Offender Registration Act; and it is furtherORDERED AND ADJUDGED that Defendant is hereby noticed of his duty to register and verify, in accordance with the New York Sex Offender Registration Act; and it is furtherORDERED AND ADJUDGED that Defendant shall read and sign the forms required by the Division of Criminal Justice Services and to complete said forms accurately and truthfully; and it is furtherORDERED AND ADJUDGED that the Defendant herein is designated as a Sexual Predator and classified as a LEVEL Il Moderate sex offender.This shall constitute the Decision and Order of this Court.Dated: July 29th, 2019Monticello, New York
