Pursuant to the Sex Offender Registration Act (hereinafter SORA), this matter comes before the court for a risk level determination proceeding under the mandates of Article 6-C of the Correction Law. On May 13, 2019, defendant was found guilty, following a jury trial, of sexual misconduct under Penal Law §130.20. On June 28, 2019, defendant was sentenced to shock probation, consisting of 60 days incarceration, six years’ probation (see Penal Law §65.00 [3] [ii]), and other applicable fines and fees.1 Defendant was also advised, in writing, of his duties to register and verify as a sex offender with the Department of Criminal Justice Services Sex Offender Registry, (hereinafter DCJS) and the mandatory obligations were received, acknowledged, and signed by defendant (see Corr. Law §§168 et seq.). The mandatory obligations were also read aloud to defendant (see Corr Law §168-d [1][a]), who acknowledged his understanding on the record. Defendant signed the Orders and Conditions of Probation after stating that he had carefully reviewed same with defense counsel and understood all terms and conditions. As well, defense counsel corroborated having a full discussion with the defendant. By consent of the parties, a SORA risk level determination hearing was scheduled for July 26, 2019. This decision, in part, infra at Section III, addresses a matter of first impression, namely, whether defendant’s current and consistent use of marijuana, under the aegis of a medical prescription, can be used by the sentencing court when deciding whether to allocate 15 points under the Risk Assessment Instrument (hereinafter RAI) risk factor 11, listed under the criminal history category of the SORA Guidelines. For the reasons set forth herein, the court finds that defendant’s current drug use, regardless of whether the use is otherwise legal, can be considered in determining “drug abuse” under risk factor 11. BACKGROUND When a defendant is discharged to probation, or otherwise discharged without incarceration, the procedure under Correction Law §168-d(3) applies, and following the District Attorney’s submission of a statement setting forth the risk level sought by the People, the court makes the risk level determination without input from the Board of Examiners of Sex Offenders (hereinafter the Board). Where a sentence of incarceration in conjunction with a sentence of probation is imposed, it is construed as probation for the purpose of making a SORA risk level determination (see People v. Grimm, 107 AD3d 1040, 1042 [3d Dept 2013]; People v. Sgroi, 22 Misc 3d 902 [2008]; also see Corr. Law §168-a [12]). In deciding the appropriate rating determination, the court is guided by the Risk Assessment Guidelines and Commentary, (hereinafter Guidelines or Commentary, as appropriate) as promulgated by the Board pursuant to Correction Law §168-l (5). Prior to the SORA hearing, the People submitted to defense counsel and the court, the People’s risk level determination recommendation, the proposed RAI in support therewith, and the following documents which were admitted into evidence at the hearing: the misdemeanor information, (People’s exhibit 1); the incident/investigation report, (People’s exhibit 2); the fingerprint response summary, (People’s exhibit 3); the victim’s statement, (People’s exhibit 4); the presentence investigation report, (People’s exhibit 5); and the Westchester Medical Center Hospital Records, (People’s exhibit 6). No documentary or testimonial evidence was proffered by defendant at the hearing. The People’s RAI recommendation indicated that defendant should be designated a presumptive risk level one sex offender based on the allocation of 65 points to defendant’s total risk factor score, derived as follows: 15 points under RAI risk factor 1: “Use of violence: inflicted physical injury”; 25 points under RAI risk factor 2: “Sexual contact with victim; sexual intercourse”; 15 points under RAI risk factor 11: “Drug or alcohol abuse; history of abuse”; and, 10 points under RAI risk factor 10: “Acceptance of responsibility: not accepted responsibility.” On July 26, 2019, defense counsel was unable to appear due to an emergency, and the SORA hearing was adjourned to September 3, 2019. However, prior to the adjournment, Probation Officer Tenaglia, who is supervising the defendant, was present with the Assistant District Attorney and asked to be heard by the court. Officer Tenaglia (hereinafter Tenaglia) stated that he was present to specifically notify the court that the defendant was close to being violated due to his failure to register as a sexual offender with DCJS, (see Corr. Law §§168 et seq.), his continued use of a computer with internet access, his continued hosting of a webpage, his maintenance of a YouTube video in order to obtain clients for his prohibited dog training business2, and his continued use of a prohibited iPhone with internet access. Tenaglia also stated that while the defendant denied using a computer, Tenaglia’s search of defendant’s phone revealed otherwise. The court re-issued to defendant a copy of his mandate to register and verify with DCJS and admonished him that he must comply with all mandates of his probation as previously ordered by the court. The SORA hearing was conducted on September 3, 2019 and October 4, 2019. Although defense counsel did not object to the level one designation, because, as argued, there is no lower designation than level one, counsel would not stipulate to any risk assessment factors; hence, a hearing was conducted. Based on the testimonial and documentary evidence received by the court, and the arguments of counsel, the court finds that the People established, by clear and convincing evidence (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; see also People v. Salaam, 174 Misc 2d 726 [1997]), the risk assessment factors as set forth below. FINDINGS OF FACT AND CONCLUSIONS OF LAW I: Risk Assessment Factor 1: Use of Violence: Inflicted Physical Injury The People argue for the allocation of 15 points based on the Westchester Medical Center hospital records consisting of 65 pages, (People’s exhibit 6), which documented an internal injury to the victim, to wit, a tear to the victim’s posterior fourchette. At the hearing, defense counsel objected to the allocation of any points, arguing that the injury, as ostensibly testified to by the treating nurse at trial, could have been caused by tight clothing or wearing a “bad pad.” Nothing in the trial record supports that claim. To the contrary, those arguments made at trial by the defense were soundly debunked by the treating nurse. The treating nurse testified that while she has seen a tear to the posterior fourchette in circumstances unrelated to a sexual assault, such as childbirth, it is it is exceedingly rare, inapplicable in the instant case, and the victim’s fresh tear was caused by the underlying offense. In addition, the victim’s statement, (People’s exhibit 4), reveals that the treating nurse told her that the tear was caused by the instant offense, and at trial, the victim’s testimony of the event corroborated the nurse’s findings. Correction Law §168-n [3], provides, in pertinent part, “the [SORA] court shall review any victim’s statement and 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…provided that it is relevant to the determinations. Facts previously proven at trial…shall be deemed established by clear and convincing evidence and shall not be relitigated.” Further, the Guidelines at 7, state that “[r]esearch on sex offenders shows that an offender’s use of violence is positively correlated with his likelihood of reoffending (internal citations omitted).” The court finds the People established, by clear and convincing evidence, that with the use of violence, the defendant inflicted physical injury to the victim in connection with the instant offense. The People’s application to allocate 15 points under RAI risk factor 1 is granted. II: Risk Assessment Factor 2: Sexual Contact with Victim: Sexual Intercourse The People argue for the allocation of 25 points based on People’s exhibits 1, 2, 4, 5, and 6, as well as the defendant’s conviction for sexual misconduct by engaging in sexual intercourse with the victim without her consent. While defense counsel did not stipulate to the allocation of any points, counsel concedes that sexual intercourse took place, merely arguing that the intercourse was consensual. The defendant was convicted after trial, where the burden of proof is beyond a reasonable doubt, of sexual misconduct when “he or she engages in sexual intercourse with another person without such person’s consent” (see People v. Wyatt, 89 AD3d 112, 118 [2d Dept 2001]; see also Corr Law §168-n [3] ["Facts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence"]). As such, the court finds that the People established, by clear and convincing evidence, that defendant had sexual contact with the victim by engaging in sexual intercourse. The People’s application to allocate 25 points under RAI risk factor 2 is granted. III: Risk Assessment Factor 11: Drug and Alcohol Abuse Structurally, the RAI is composed of four main categories of risk factors: 1) Current Offense (risk factors 1-7); 2) Criminal History (risk factors 8-11); 3) Post-Offense Behavior (risk factors 12-13); and 4) Release Environment (risk factors 14-15). Central to the court’s determination of whether to allocate points under risk factor 11, the following is noted: 1) Defendant has a history of drug convictions; 2) Defendant is now — of apparent recent vintage after being sentenced to probation — being prescribed medical marijuana; and, 3) the Guidelines and Commentary were last updated in 2006, well-before the July 2014 enactment of New York State’s Compassionate Care Act and attendant Public Health Laws enacted therewith. This court could find no case under SORA that addresses a sex offender’s current use of prescription/medical marijuana as it relates to risk factor 11, and, as such, this issue appears to be one of first impression. A: Analysis of Risk Factor 11 and Defendant’s Drug History By looking at the construct of the RAI, a SORA court might be persuaded to look exclusively at a sex offender’s prior drug (or alcohol) history when deciding whether to allocate points under risk factor 11. Accordingly, the People request that based on the defendant’s prior marijuana convictions, (see People’s exhibit 5), the allocation of 15 points is appropriate. The People point to defendant’s felony drug possession arrest in New Jersey on December 12, 2014, whereupon he entered a one-year diversion program3 from February 2016 to February 2017. In the PSI, defendant claims that he was on probation for that year, although he denies ever having been in a substance abuse program. The People also reference defendant’s Florida felony arrest for drug possession in 1996, after which he pleaded guilty to misdemeanor possession. The PSI refers to an additional 2001 marijuana possession arrest for which no disposition is reported. Significantly, defendant admits to using alcohol and marijuana even though he claimed he has been “pretty responsible” and did not “feel his use” (emphasis added) was a problem for him (People’s exhibit 5 at 9). The People argue that defendant’s criminal history belies that claim. Defense counsel avers that since possession of marijuana has been decriminalized in New York, these incidents should not be used against the defendant. The fact that possession of small amounts of marijuana has been decriminalized by the New York State Legislature, does not mean that possession has been legalized. Penal Law §§221.05, 221.10, effective August 28, 2019, have made possession of up to one ounce of marijuana punishable solely by a fine of no more than $200. While possession of small amounts of marijuana is no longer a criminal offense (defined as a felony or misdemeanor) in New York, it is a violation for which the legislature has imposed some penalty, no matter how de minimus. As previously noted, two of the defendant’s three prior drug arrests were for felony possession.4 People v. Palmer, 20 NY3d 373 (2013) provides guidance; the Court outlined the principals that a SORA court should weigh before assigning points under risk factor 11: “Corr Law §168-l (5) (a) (ii) provides that ‘repetitive and compulsive behavior, associated with drugs or alcohol’ should be taken into consideration when assessing the risk of a repeat offense. While both the statute and the Guidelines textually provide that individuals with a history of drug or alcohol abuse are to be assessed points, the commentary to the Guidelines notes that points for drug or alcohol abuse may be assessed even if the offender abused substances only ‘at the time of the offense.’ The commentary to the SORA Guidelines describes risk factor 11 as follows: Alcohol and drug abuse are highly associated with sex offending. The literature indicates that use of these substances does not cause deviate behavior; rather it serves as a disinhibitor and therefore is a precursor to offending (Guidelines and Commentary at 15 [citations omitted])…. The purpose of the SORA Guidelines is to identify behavior that is relevant to the risk of reoffending” Palmer at 378 (emphasis added). By contrast, the Guidelines are not meant to address occasional or social drinking or even the sporadic use of drugs (see People v. Ceja, 143 AD3d 685 [2016]; People v. Rohoman, 121 AD3d 876 [2014]). While risk assessment factor 11 falls within the defendant’s criminal history, suggesting that history is indicative of future conduct, this court has current information about the defendant’s ongoing and intended use of drugs. Under a strict interpretation of the RAI, the court would be left with three options: find by clear and convincing evidence that the defendant’s criminal history rises to the level of drug abuse; decline to find that the defendant’s criminal history rises to the level of drug abuse; or consider an upward departure based on current use. Three steps must be followed for a court to order a departure from the presumptive risk level. First, the court must decide whether the aggravating circumstances, as a matter of law, are of a kind or degree not already taken into consideration by the Guidelines (see Commentary at 4 [1997 ed]) (emphasis added). Then, the court must find that the moving party has met its burden, and finally, if the first two steps are met, the court must exercise its discretion to assure that a departure would not lead to an over-assessment of the defendant’s dangerousness and risk or recidivism (People v. Gillotti, 23 NY3d 841, 861 [2014] [internal citations omitted]). An upward departure would raise the defendant’s risk assessment by an entire level, from a low risk (level one) to moderate risk (level two) sex offender. In this case, that would be tantamount to ascribing far more points to drug use than the 15 points allocated within the RAI and currently contemplated by the Guidelines and Commentary, signaling a significant increase in defendant’s risk of re-offense or danger to the community. If, with the advent of the Compassionate Care Act and the attendant Public Health Laws enacted in conjunction therewith, courts should assign more than 15 points with proof of current drug use, then the Corrections Law, the RAI, and the Guidelines and Commentary must be updated. Such a determination is outside the province of this court. The Guidelines are clear and it is well-settled law that the RAI will result in the proper classification in most cases so that departures will be the exception and not the rule (see People v. Girup, 9AD3d 913 [2004]; People v. Inghilleri, 21 AD3d 404 [2d Dept 2005]). This court finds that a strict construction of risk factor 11, (looking only at history), and upwardly departing based on defendant’s current drug use, would lead to an unwitting and anomalous result, not currently contemplated by the Guidelines and Commentary. This court does find, however, that there is ample precedent for looking at defendant’s current drug use when analyzing whether to ascribe 15 points under risk factor 11. B: Analysis of Risk Factor 11 and Defendant’s Current Drug Use On September 3, 2019, Tenaglia testified that defendant was testing positive for marijuana. Then, defendant produced a note from a physician who prescribed him with marijuana for undisclosed reasons. There is no evidence before this court that defendant was ever previously prescribed a prescription for marijuana, or any evidence that he was being treated for any “serious condition” (see Public Health Law §3361). To the contrary, the defendant, in his PSI interview, denied having any physical health issues and denied suffering from any mental health symptoms. Defendant did indicate to the PSI interviewer that he was diagnosed with Post Traumatic Stress Disorder in the past. Public Health Law §3360 (7), includes “post-traumatic stress disorder” among the conditions for which medical marijuana may be prescribed. While the jail records indicate that the defendant has an “active psychiatric disorder,” upon further questioning by the PSI interviewer of Dr. Jerome Norton, Director of Mental Health Services at the Westchester County Jail, the director reported that the defendant does not have a current mental health diagnosis nor was he prescribed any medication while incarcerated (PSI at 9). According to defense counsel, defendant was given an exit interview by Mental Health Services at the Westchester County Jail and represented that the defendant was cleared, does not suffer from any physical or mental health infirmities, and is not in need of any mental health evaluation, even if set forth in the conditions of Probation.5 The court is faced with a defendant who will use marijuana, not occasionally, but continuously and repetitively. Whether prescribed or otherwise, continuous drug use, according to the literature, is a precursor to reoffending and the sentencing court is obligated to evaluate factors relevant to the defendant’s risk of reoffending (Palmer at 378). The precedent for looking at current behavior is also demonstrated when, for example, defendants have argued at SORA hearings that no points should be allocated under factor 11 if they have abstained from drug use while incarcerated. Courts, throughout NY State, have ruled that abstinence during incarceration, “is not necessarily predictive of [future non-use] when no longer under such supervision” (People v. Vangorder, 72 AD3d 1614 [2010]; see also, People v. Newman, 148 AD3d 1600 [2017], lv denied 29 NY3d 914 [2017]). In these cases, the defendant’s abstinence while incarcerated was not part of their criminal history, or the offender’s conduct during the commission of the crime, yet their current abstinence was used as a predictor of future behavior. Likewise, the Commentary itself, provides a unique scoring option under risk factor 11 that is lacking under any other risk factors in the RAI. If a defendant has only abused drugs in the distant past, but his more recent history is one of prolonged abstinence, the Board or court may choose not to score points in this category thereby giving wide latitude to the sentencing court (see People v. McFarland, 29 Misc 3d 1206 [A], 2010 NY Slip Op 51705 [U] [Sup Ct, NY County [2010], aff’d 88 AD3d 547 [2011], lv denied 18 NY3d 860 [2011]) (emphasis added). As such, without strictly adhering to one’s past criminal record or conduct during the commission of the crime, a sex offender’s recent conduct can be used by the court in deciding whether to assess points under risk factor 11. The McFarland court’s decision was, in large part, a critique of how the assessment of points under many of the RAI risk factors may not necessarily produce results correlated to the risk re-offending, yet, as to risk factor 11, the court relied on the expertise of two experts, one of whom “emphasized, [that] using alcohol or drugs might be associated with an acute risk for sexual re-offense at the time such substances [are] used (emphasis added)” (McFarland, 2010 NY Slip Op 51705 [U], 91-92*). Furthermore, the supporting literature in the Guidelines supports the conclusion that drug use is linked with re-offending behavior.6 Fundamental to this analysis is the fact that the Commentary, as well as the experts, repeatedly refer to drug use, not just drug abuse. Clearly, one’s use of medical marijuana should be safeguarded, as appropriate, if the individual is a certified patient. A certified patient is one who is diagnosed by a registered practitioner to have a serious condition, and following the review of past treatments, the patient is likely to receive therapeutic or palliative benefit from the primary treatment with medical marijuana for the serious condition (Public Health Law §3361 [emphasis added]). Defendant’s medical marijuana was prescribed for a reason not disclosed to Tenaglia. Defendant and his counsel have repeatedly declared that defendant does not suffer from any physical or mental health infirmity. There is no evidence that the prescriber considered past treatments for some serious condition or that his current prescription followed past treatments — especially important here since we know that defendant was not under the use of any medications while incarcerated. There is no evidence in the record as to whether the defendant was prescribed the marijuana by a registered practitioner after having been diagnosed with a serious condition, and there is no evidence that the defendant registered as a certified patient. While this court is hardly persuaded that defendant’s use of medical marijuana complies with applicable Public Health Laws and the Compassionate Care Act, since the defendant’s veracity has been called into question multiple times during the course of these proceedings, the absence of proof must not be correlated with affirmative proof given the People’s burden. However, the court need not reach such a determination on the legitimacy of the defendant’s prescription within the confines of this hearing. C: The Allocation of Points under Risk Factor 11 is Warranted In the case at bar, based on defendant’s prior contacts with the criminal justice system relating to arrests and convictions for marijuana possession, the defendant’s recent participation in a diversion program after one of his felony drug arrests, the defendant’s current, consistent, and intended habitual use of marijuana, and the fact that the SORA Guidelines, as related to risk factor 11, were established because the consistent use of drugs (and alcohol) is related to the risk of re-offense as supported by experts in the field, this court grants the People’s request to allocate 15 points under RAI risk factor 11, and finds the evidence has been supported by clear and convincing evidence. IV: Risk Assessment Factor 12: Acceptance of Responsibility: Not Accepted Responsibility The People argue for the allocation of 10 points based on the defendant’s failure to accept any responsibility for his actions. Pursuant to the Guidelines at 18 (2006), the court may look to the defendant’s “most recent credible statements and should seek evidence of genuine responsibility.” The pre-sentence investigation report reveals that the defendant fails to acknowledge one scintilla of responsibility in connection with this sexual offense. Rather, the defendant blamed the victim for a false accusation and claimed that her motive to lie was based on the fact that once the defendant discovered she was menstruating, he was “grossed out” and due to his shaming the victim for having her period, she fabricated a story. He also blamed the victim for having “psychological issues” and falsely claimed that the victim suffered from “bi-polar disorder and schizophrenia.” The defense objected to any allocation of points because the defendant maintains his innocence. The defendant continues to victim shame and blame and shows zero remorse for his conduct or the impact that the incident had on the victim, knowing that she tried to commit suicide after the event took place. The defendant was found guilty of the instant sexual offense, and as such, the jury rejected the defendant’s version that the sexual intercourse was consensual. The court finds that the People have established, by clear and convincing evidence, that 10 points under RAI risk factor 12 should be allocated and the People’s application is granted. Upon consideration of the foregoing, It is hereby ORDERED and ADJUDGED that a total of 65 points is allocated to the defendant’s Total Risk Factor Score; and, It is further ORDERED and ADJUDGED that pursuant to Correction Law §168 (d) (3), the defendant is hereby designated a RISK LEVEL ONE sex offender. This constitutes the DECISION and ORDER of the Court. Dated: November 21, 2019 White Plains, NY
