This matter comes on by the Defendant’s Petition filed June 3rd, 2019 asking for a Downward Modification of his SORA 1 designation. Filed with the Petition is Defendant’s Memorandum of Law in support thereof. The Petition asks the court to reduce the Defendant’s SORA designation from a Level 3 to a Level 1. The Board of Examiners of Sex Offenders filed an “updated recommendation of the sex offender risk level for Jacob Stein” on June 27th, 2019. Thereafter, the People filed an Affirmation in Opposition on July 9th, 2019. Jacob Stein, the Defendant herein, was convicted on July 23, 2015 upon a plea of guilty to two (2) counts of Possessing a Sexual Performance by a Child Less Than Sixteen, in violation of PL §236.16.2 This guilty plea was in satisfaction of the Indictment, which also contained an additional Two Hundred Thirteen (213) counts of the same charge, based upon the Defendant’s possession and access of a substantial amount of overtly pedophilic content titles that depicted children engaged in sexually explicit conduct. The Defendant had also downloaded several files containing images of female children appearing under the age of ten (10) engaging in anal and vaginal intercourse with adult males, as well as a female child appearing under the age of sixteen (16) lewdly exhibiting her genitals to the camera. The Defendant was thereafter sentenced to three and one-half to ten (3 ½ to 10) years of incarceration. The Department of Corrections and Community Supervision granted the Defendant an open release date of July 9, 2018, with the anticipation that the Defendant would be supervised on a specialized Community Supervision caseload until the maximum expiration date of his sentence on January 6, 2025. The Board of Examiners of Sex Offenders (hereinafter, “Board”) had assessed Defendant thirty (30) points under the SORA Risk Assessment Instrument (hereinafter, “RAI”) completed on April 13, 2018. This assessment is based upon Risk Factor No. 5, the age of the victims being ten (10) years old or less. This would result in the Defendant being assessed as a Level 1 (Low Risk) Sex Offender. The Board, however, determined that an upward departure to a Level 3 Sex Offender was appropriate, given the fact that a mental health evaluation conducted by Options Counseling Services in October of 2015 found that the Defendant “presents with a rigid and fixed interest in pedophilic stimuli” and “meets the criteria for Pedophilic Disorder.” As a result, the Board recommended that this Court find Defendant to be a Level 3 Sex Offender. On June 28, 2018, 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 Possessing a Sexual Performance by a Child Less Than Sixteen, in violation of PL §236.16. The documents entered into evidence at trial included the Defendant’s RAI and Case Summary, the Defendant’s PSI, and the Options Counseling Services Forensic MHE Report conducted by Colleen M. De Graff, MA dated October 30, 2015. At the SORA hearing and at all times relevant to these proceedings, the Defendant was represented by counsel. By Decision and Order dated July 30, 2018, this Court determined that the presumptive override to a SORA Risk Level 3 Sex Offender was appropriate and adjudicated the Defendant as such. The Defendant thereafter sought to (a) strike from the record the Options Counseling Services Forensic MHE Report conducted by Colleen M. De Graff, MA dated October 30, 2015; (b) redact from the Defendant’s PSI any and all references to the Options Counseling Services Forensic MHE Report conducted by Colleen M. De Graff, MA dated October 30, 2015, or the contents therein; (c) vacate the SORA Risk Level 3 determination and re-designate the Defendant as a SORA Risk Level 1 Sex Offender; and (d) other and further relief as deemed just and proper. By Decision and Order of this court dated May 21st, 2019, the Court held as follows: “A sex offender who wishes to have his or her SORA Risk Level modified must file a petition pursuant to Correction Law §168-o. Such petition “shall set forth the level of notification sought, together with the reasons for seeking such determination. The sex offender shall bear the burden of proving the facts supporting the requested modification by clear and convincing evidence.” Correction Law §168-o(2). “Upon receipt of a petition submitted pursuant to subdivision one, two or three of this section, the court shall forward a copy of the petition to the board and request an updated recommendation pertaining to the sex offender and shall provide a copy of the petition to the other party.” Correction Law §168- o(4). Failure to follow the procedure and guidelines in the statute warrant a denial of a request for modification. People v. Pero, 49 AD3d 1010 (3d Dept. 2008); People v. Hazen, 103 AD3d 943 (3d Dept 2013)[holding that "Defendant's request for a downward modification of his risk level was improperly made by motion, rather than by petition as required by Correctional Law §168-o(2)."]. “ The instance petition is filed in response to that Decision and Order and the petition renews Defendant’s request for a downward modification of his SORA designation from a Level 3 to a Level 1. The basis of the Defendant’s argument is 1. Change of Circumstances: The Defendant alleges that the psychological evaluation upon which Mr. Stein’s determination was made was flawed and the examiner unqualified to make such an evaluation. Also, that the evaluation was stale and new evidence has been presented showing Mr. Stein is presently “healthy” and has made rehabilitative strides since his incarceration3; 2. Ineffectiveness of Counsel: Mr. Stein’s Level 3 classification was based on a litany of substantive and procedural and constitutional errors: a. At plea and sentencing, counsel failed to object to the admission of a privileged Options Report; b. The Defendant has a constitutional right to effective counsel at the SORA proceedings and Defendant’s counsel failed to have his client reevaluated and to submit a report that would rebut the findings of the Options Report; The defense argues that the Defendant is a first time offender, that he has never made any effort to make contact with a child, that he has repeatedly expressed genuine remorse, that his objective test scores were overwhelmingly positive and that recent psychiatric and psychological examinations establish that the Defendant in “not now (assuming he ever was) a pedophile or a danger to the community.” The People allege that the Defense has failed to put forth any “change in circumstances” which would warrant a downward modification. The fact that Defendant is a middle aged first time offender, has made no effort to contact a child, has expressed remorse and had positive objective test scores are factors which were all considered at the June 2018 SORA hearing and therefore do not rise to the level of “clear and convincing” evidence standard needed to modify. Further, the People argue that Defendant’s arguments alleging improper submission to the court and the timeliness of the report were addressed by the court in the June 2018 hearing and the court considered them and having found them without merit rendered a decision. This information is neither new or a “clear and convincing” reason to modify. The Board likewise state in their updated recommendation letter dated June 26th, 2019 that the Defendant has failed to “provide clear and convincing proof that his psychological condition has changed to a degree that mitigates his risk to re-offend.” The Board states that only two things have changed since the SORA hearing in July 2018 which would have a bearing on Mr. Stein’s risk to reoffend. They are: 1. Mr. Stein violated his parole two months after his release and was incarcerated as a result; 2. Mr. Stein underwent a second psychological evaluation submitted with the instant petition. After reviewing this Petition and attached Exhibits, including the second psychological evaluation, the Board concluded that Mr. Stein has provided no clear and convincing evidence that his risk has been mitigated to a degree that would warrant any reduction in level. They found the second evaluation inconclusive and incomplete. Therefore, the Board opposes any reduction in Mr. Stein’s SORA Level Designation; a sentiment which is shared by the Prosecution. A sex offender who wishes to have his or her SORA Risk Level modified must file a petition pursuant to Correction Law §168-o. Such petition “shall set forth the level of notification sought, together with the reasons for seeking such determination. The sex offender shall bear the burden of proving the facts supporting the requested modification by clear and convincing evidence.” Correction Law §168-o(2). In the case at bar, the Defendant has argued that the court should not have considered the report of Ms. DeGraff as she was not qualified to make such a determination as to this defendant and because this was a privileged report which should never have been sent to the court. These arguments were previously made at the SORA hearing in June and were previously considered by this Court in the Court’s prior Order. Furthermore, it is clear that Ms. De Graff’s assessments were consistent with the Association for Treatment of Sexual Abusers Practice Guidelines and were “signed off” on by her superior Peter M. Geller who is a licensed Clinical Social Work and qualified to make such a diagnosis. The court sees no reason to discount Ms. DeGraff’s and Mr. Geller’s findings. It is interesting to note here that it was the Defendant who requested this report from Ms. DeGraff and the court is quite confident that, had the report been in the Defendant’s favor, we would not be having this discussion regarding Ms. DeGraff’s qualifications to render such a decision. As indicated in this court’s prior Decision and Order, the Defendant cannot be allowed to use this report as both a “shield and a sword” simply because he does not like the result. The Board and the People both make a convincing argument that the Report by Dr. Bardey is not persuasive because it is not complete and is not comprehensive. In fact, Dr. Bardey states specifically “this letter highlights my key findings and is not [emphasis added] a comprehensive report, which is to follow.” No further report from Dr. Bardey was submitted to the court and on that basis this report lacks full credibility. The court also finds persuasive the Peoples and the Board’s argument that Mr. Stein’s interview with Dr. Bardey differed from his answers given to Ms. DeGraff. The Defendant’s attorney indicated “Mr. Stein had no idea that anything he said to the Options Interviewer (Ms. DeGraff) would later be used against him.” This strongly indicates that had he known the purpose of the interview he would have modified his answers to meet his purposes. Therefore the People’s argument that Dr. Bardey’s report is not only incomplete but was “tainted by the Defendant” because the Defendant knew the purpose of this interview and had “significant incentive to tailor his answers and minimize his sexual history and behavior…” is quite persuasive. Particularly in light of the Board’s concurrence in this belief as they clearly indicated in their updated recommendation letter where they stated “It does not go unnoticed that Mr. Stein gave vastly different accounts of his sexual history to Ms. Degraff and to Dr. Bardey.” Based on the foregoing this court finds that the defendant has failed to put forth any clear and convincing proof that would justify a downward modification of this SORA Level from a Level 3 to a Level 1, it is therefore ORDERED, that Defendant’s petition to modify his SORA level downward is denied, without prejudice; and it is further This shall constitute the Decision and Order of this Court. Dated: August 9th, 2019 Monticello, New York
