DECISION OF THE COURT Procedural History On June 4, 2019 the defendant was convicted, after a jury trial, of the charge of forcible touching in violation of New York State Penal Law §130.52(1). The court then sentenced the defendant on August 15, 2019 to a term of two hundred and seventy days of incarceration with no period of supervised release. Prior to sentencing, the court designated the defendant as a sex offender due to a prior conviction of forcible touching in 2007. Subsequently, the matter came before this court for a final determination of the defendant’s sexual offender designation and level of notification pursuant to §168-n of the New York State Correction Law (Sex Offender Registration Act). The parties appeared on January 17, 2020 and the proceeding was adjourned for a hearing to be conducted on January 30, 2020. At that time the District Attorney and defense counsel were provided an opportunity to be heard regarding factors set forth and made part of a Risk Assessment Instrument (RAI) submitted by the New York State Board of Examiners. Upon conclusion of the proceeding the parties were permitted to submit written memoranda of law to support each of their respective legal arguments. Based upon the defendant being sentenced to a term of straight incarceration, an RAI was requested and provided by the Board of Examiners which allocated 60 points to the defendant as follows: 10 points for sexual contact with the victim, 20 points for relationship with the victim, 5 points for the number and nature of prior crimes, 10 points for the lack of accepting responsibility, 15 points for the release environment. This score presumed the defendant to be a Level 1 risk to re-offend. The People submitted two (2) risk assessments by two different assistant district attorneys. The first risk assessment was received by the court on or about August 13, 2019, and a subsequent risk assessment was received on or about February 7, 2020. In its latest submission, the People requested departure from the Board of Examiner’s RAI arguing the defendant should be classified as a Level 2 sex offender based upon the following point determination: 10 points for sexual contact with the victim, 20 points for duration of offense conduct with victim (as set forth on the record), 0 points for the relationship with the victim, 30 points for the number and nature of prior crimes, 10 points for non-acceptance of responsibility, 15 points for release without supervision (as set forth on the record and inaccurately set forth in submission as 5 points). The score calculated is 85 points which would presume the defendant to be a Level 2 risk to re-offend. The defendant argues that he should be assessed a total risk score of 60 points and a determination made that he is a presumptive Level 1 risk to re-offend. The defendant relies upon the following calculation for assessment purposes: 10 points for sexual contact with the victim, 20 points for duration of offense conduct with victim, 0 points for relationship with the victim, 5 points for number and nature of prior crimes, 10 points for non-acceptance of responsibility and 15 points for the release environment. Based upon the submission of the parties the court shall conduct an analysis of the following: (1) whether points should be assessed based upon the relationship the defendant had with the victim and (2) whether the defendant’s prior convictions of forcible touching in 2007 constitutes a misdemeanor sex crime within the meaning of risk factor 9 of the RAI and assessing points as a result thereof (3) whether an upward departure is appropriate based upon the defendant’s conduct. Background By way of background, defendant, Samuel Yancey, is a sixty-nine year old male who was convicted by a jury of forcible touching on June 4, 2019 as a result of criminal activity which occurred in the fall of 2018 in the City of Watertown, County of Jefferson. Along with his arrest in the City of Watertown, the defendant was arrested for conduct occurring in the Town of New Bremen, County of Lewis involving the same victim and similar allegations. Upon information and belief, the charges in New Bremen remain unresolved. The defendant is a licensed veterinarian who resides, and has a professional practice, in the Town of New Bremen. The defendant’s clinic is located at his personal residence. The victim in the case, D.R., is a nineteen year old female who testified at trial that the defendant was a family friend who hired her at his veterinarian clinic when she was obtaining services for a pet. Further, to minimize travel issues between Watertown and New Bremen, the defendant permitted the victim to live in his own residence. The defendant also provided the victim with financial assistance for a cellular phone and other needs along with providing transportation when necessary. It was during this employment and living arrangement that defendant engaged in unwanted sexual contact with the victim by touching her back, stomach, legs, and breasts under her bra. She also stated that despite not having provided consent, the defendant kissed her and forcibly grabbed her intimate parts over a period of several weeks in both the Counties of Jefferson and Lewis. These incidents occurred in various locations including D.R.’s apartment in Watertown, the defendant’s vehicle and his home and veterinarian clinic. Contained within the defendant’s sworn deposition taken on October 30, 2018, admissions were made by the defendant to having hugged the victim upon her experiencing a “melt down” and having her sit on his lap while trying to “check her mental status”. The court will note that it was evident at trial that the victim suffered from physical and mental disabilities which the defendant took advantage of for the purposes of satisfying his sexual desires. The defendant also set forth in his deposition that “I rubbed [D.R.'s] shoulders, back, belly, arms and legs. I rubbed her both above and underneath [D.R.'s] shirt” and described the victim as a “slim, young, attractive woman”. The victim stated in her sworn deposition that she was familiar with the defendant since she was seven years old as he had provided care for their family pets. She began working for him in late September of 2018. When referring to the defendant’s conduct, the victim stated that “I’ve told him I don’t want him touching me, I’ve pushed him off me, and tried to block his advances. I want Samuel arrested for all of the unwanted sexual contact”. Prior to imposing a sentence, a pre-sentence report was ordered and submitted to the court on July 24, 2019, wherein the defendant denied guilt to the charge of forcible touching for which he was convicted. Also contained within the report is a sexual abuse victim impact statement whereby the victim provided the following answers to the questions posed: Q: “What effects do you feel the incident has had on you, both physically and emotionally? A: Emotionally — every van that drive by me that even somewhat looks like his I start getting skidish and nervous. It effected my ptsd worst and hurt me even more cause he knew my past abuse when he decided to try to hurt me. Physically it made really uncomfortable — and emotionally it also made think and feel like I could not trust or feel comfortable around anyone.” The pre-sentence investigation report also showed the defendant’s prior criminal history including that he was previously found guilty of three counts of forcible touching in 2007 and sentenced to thirty days of incarceration along with six years of probation.1 In addition, in 2010, the defendant was found guilty after a trial of a charge of criminal trespass 3rd degree. He was sentenced and assessed a five-hundred dollar fine. Additionally, the defendant currently faces two additional charges of forcible touching which are pending in the Town of New Bremen Court based upon allegations which occurred in October of 2018 involving the same victim of the underlying conviction. Standard of Law Along with the evidence adduced at trial, the statements of both the victim and defendant, “[in] making its determination, the court may consider reliable hearsay evidence such as the case summary, pre-sentence investigation report and risk assessment instrument (People v. Mingo, 12 NY3d 563, 573 [2009]; People v. Stewart, 77 AD3d 1029, 1030 [2010]). The Court in People v. Mingo further held that no foundation is needed for consideration to be given to these types of reports as they are “created under statutory mandates”. Furthermore, it has recently been held that pre-sentence investigation reports and case summaries constitute reliable hearsay and “can provide sufficient evidence to support the imposition of points” (People v. Diaz, 2020 WL 768680 [Ct App, February 13, 2020, No. 37 SSM 28]) The Court must review, but is not bound by, any recommendation submitted by the Board of Examiners as discretion exists to deviate from the recommendations based upon due consideration or analysis of the risk factors and hearing from the respective parties (People v. Whyte, 89 AD3d 1407 [4th Dept 2011]; Corrections Law Sec., 168-n [1][2]). Furthermore, the statutory factors as set forth in the Sex Offender Registration Act should be evaluated by the court independently in making its assessment of risk. As such, this court is bound to review each factor prior to making a determination as the Board of Examiners “serves only in an advisory capacity that is similar to the role served by a probation department in submitting a sentencing recommendation” (New York State Bd. of Examiners of Sex Offenders v. Ranson,249 AD2d 891 [4th Dept 1998]) Relationship with the Victim In its risk assessment dated August 13, 2019, the People stated that “20 points should be assessed for the employment relationship that existed between the defendant and the victim” based upon the city court information with supporting depositions of the victim and the defendant. The court will note, that contained within such depositions the defendant admitted that the victim was an employee at his veterinarian business. In its subsequent risk assessment dated February 7, 2020, the People submitted that they no longer sought the assessment of twenty points for the defendant’s relationship with the victim. The People conceded to the defendant’s argument, contained within his memorandum of law, that points were not warranted as the victim did not meet the criteria of being a “stranger” to the defendant as his “means of access” were by way of a long standing familial relationship. Thus, no points should be included based upon these circumstances. The defendant sets forth in his memorandum of law that the imposition of points pursuant to risk factor 7 is only appropriate when the victim is a stranger “who is not an actual acquaintance of the victim”. To further support this argument the defendant states that the victim described him, in a written statement, as a long time family friend. The court does not find merit in the arguments provided by the People or the defendant. Upon analysis and review of the history and relationship between the victim and defendant, it is clear that 20 points should be assessed as part of risk factor 7 as the underlying forcible touching “arose in the context of a professional or avocational relationship between the offender and the victim and was an abuse of such relationship” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]) While the guidelines do not specifically define what constitutes a “professional relationship” and a breach thereof, case law has determined that this risk factor applies to those “who exploit a professional relationship in order to victimize those who repose trust in them”. It has been found that a professional relationship exists in many contexts even those between a minister providing spiritual services to parishioners in their home. (People v. Briggs, 86 AD3d 903 [3rd Dept 2011]). The court finds upon clear and convincing evidence that the defendant’s relationship with the victim was professional in nature as she was a an employee at his veterinarian clinic. Furthermore, an employer-employee relationship is one of mutual trust as the employer bestows trust in an individual to perform work related tasks and an employee’s expectation is to be treated in a dignified manner. From the facts before the court, it is evident that the victim entrusted the defendant as not only an individual to provide medical care to her animals but one whom she could be gainfully employed in a professional setting. Moreover, the court also finds that the defendant’s behavior of providing D.R. a place to live in his own residence as a condition of employment was designed to create an opportunity to exploit her. This relationship is further evidenced by defendant’s own admissions in his sworn statement dated October 30, 2018, wherein he stated “over the past several weeks since [D.R.] started working and living with me, our relationship progressed pass what a typical employer-employee relationship would be. [D.R.] would ask for financial help frequently, and I would give it to her.” In the context of this statement, along with the other reports, the court agrees with the findings of the Board of Examiners and that the defendant “will be assessed points for being in a professional relationship with the victim as it is clear and convincing that the victim was working for Mr. Yancey at the time of the instant offense.” As such, twenty points will be assessed for the defendant’s relationship with the victim. The defendant further argues that the victim referred to the defendant as a long time “family friend” and as such, she is not a stranger for the purposes of assessing points under “Relationship with Victim”. The court cannot subscribe to this argument and finds that a professional relationship existed between defendant and D.R. and the defendant continued to foster that relationship for purposes of exploitation and sexual gratification. In is clear to the court, circumstances exists which warrant a finding that the defendant established and encouraged the relationship with D. R. for purposes of exploitation and sexual gratification. (People v. Romana,35 AD3d 1241 [4th Dept 2006]; People v. Walker, 125 AD3d 1516 [4th Dept 2015]). Despite the prior familial connection, defendant repeated efforts to solicit D.R. to accept employment at his office, provide her housing and pay additional expenses for her was for a primary purpose outside the scope of employment duties. (People v. Michaux, 157 AD3d 735 [2nd Dept. 2018]). As such, the evidence is clear and convincing that facts exist to support the establishment of a relationship for the purpose of victimization. Number and nature of prior crimes The remaining issue before the court is whether defendant’s 2007 conviction of forcible touching is a misdemeanor sex crime requiring it to assess additional points as part of risk factor 9 on an RAI. The People argue that the defendant’s prior conviction of forcible touching in violation of New York State Penal Law §130.52 is a “misdemeanor sex crime” as defined by statute and regardless of age. The defendant argues that his prior conviction of forcible touching is not a “misdemeanor sex crime” because the victim was eighteen years of age or over at the time and, as such, defendant was not a sex offender having been convicted of a sex offense requiring registration under SORA. (Correction Law section 168-a(1) and (2)). It should be further noted that the Board of Examiners did not assess the defendant a score in regard to risk factor 9 on the RAI due to the underlying details of the defendant’s prior conviction being unavailable. However, this court need not adhere to such recommendation after conducting the required analysis. (People v. Smilowitz, 178 AD3d 1187 [3rd Dept 2019]). Despite a conviction having occurred several years prior to the requirement of a SORA hearing, it is still applicable in a final determination (People v. Kraeger, 42 AD3d 944 [4th Dept 2007]). For the following reasons, the court finds that defendant’s prior conviction of forcible touching in 2007 is a misdemeanor sex crime for purposes of assessing 30 additional points in risk factor 9 of the RAI. A defendant’s past criminal conviction of any sex offense or crime is of paramount concern to this court. As set forth in the Risk Assessment Guidelines and Commentary, it states “[a]n offender’s prior criminal history is significantly related to his likelihood of sexual recidivism, particularly when his past includes violent or sex offenses” (Risk Assessment Guidelines and Commentary 2006 citing Quinsey et. al. 1995; McGrath 1991; Quinsey 1990; Romero & Williams 1985; Long & Groth 1983; Longo, Groth & McFadin 1982) The court finds that even though defendant’s prior 2007 conviction of forcible touching was not a “sex offense” defined by Correction Law section 168-a(2) which required SORA registration, it never-the-less is a misdemeanor sex crime for purposes of assessing risk in factor 9 of an RAI. (People v. Valdivia, 51 Misc 3d 134(A) [1st Dept 2016]) holding a defendant’s challenge to a 30 point assessment was lacking in merit “since he was previously convicted of a misdemeanor sex crime, specifically, the class A misdemeanor of Forcible Touching” and People v. Syed, 60 Misc 3d 129(A) [1st Dept 2018] declining to address the merits of the defendant’s challenge to a 30 point assessment for a prior conviction of forcible touching. However, the court held that “were we to review this contention, we would reject it, since defendant was previously convicted of a misdemeanor sex crime, specifically, the class A misdemeanor of forcible touching”.) Essentially, a defendant’s level of notification needs to be assessed based upon, among other risk factors, having been convicted twice of forcible touching regardless of the victim’s age. [Correction Law section 168-a(2)(c)(iii)]. And, it follows that defendant’s prior conviction of a misdemeanor sex crime is a relevant fact to determine defendant’s level of notification while assessing points on risk factor 9 of the RAI.. (See People v. Kraeger, 42 AD3d 944 [4th Dept 2007] holding that a prior conviction of sexual abuse in the third degree a class B misdemeanor, was a misdemeanor sex crime under risk factor 9 despite not requiring registration as a “sex offense” at the time of defendant’s conviction.) Correction Law §168-a(2) defines the circumstances in which the crime of forcible touching will be treated as a “sex offense”. This definition does not, nor should it, limit what a sentencing court may determine to be a “misdemeanor sex crime” for purposes of assessing risk to re-offend and what level of notification is required of a sex offender. The statute clearly sets forth that upon two convictions of forcible touching regardless of a victim’s age, a determination of sex offender status pursuant to the New York State Sex Offender Registry shall be made regardless of when the prior conviction occurred. Corrections Law §168-a(2)( c)states: “a conviction of or a conviction for an attempt to commit any of the provisions of section 130.52 or 130.55 of the penal law regardless of the age of the victim and the offender has previously been convicted of: (i ) a sex offense defined in this article, (ii) a sexually violent offense defined in this article, or (iii) any of the provisions of section 130.52 or 130.55 of the penal law, or an attempt thereof” The court finds the case law cited by the defendant being distinguishable as the People v. Lancaster, 128 AD3d 786 [2nd Dept 2015] involved a proceeding in which the defendant’s prior conviction of assault with the intent to commit rape by a military tribunal was improperly considered a sex offense for purposed of category 9 of the RAI. To his credit, the defendant cites to further case law wherein a prior out of state conviction qualified as a misdemeanor sex crime which provides insight as to the SORA process. However, the factual elements are inapplicable to this proceeding, but its holding leads to the court’s conclusion that defendant’s prior conviction of forcible touching is a misdemeanor sex crime. (People v. Perez, 162 AD3d 1083 [2nd Dept 2018]) As such, upon review of the submissions of the parties and the Board of Examiners, it is hereby determined by clear and convincing evidence that thirty points shall be assessed to the defendant in risk factor 9 on the RAI because the prior conviction of forcible touching constitutes a “misdemeanor sex crime”. Conclusion In conclusion the court finds, based upon clear and convincing evidence, the following calculations in determining the defendant’s risk level to re-offend: 10 points for sexual contact with the victim, 20 points for the duration of offense with victim, 20 points for relationship with the victim, 35 points for number and nature of prior crimes (5 points for Criminal Trespass; 30 points for prior Forcible Touching), 10 points for not accepting responsibility, 15 points for lack of supervision. A total risk factor score of 110 is assessed against defendant which designates him a level 3 sex offender. The court further finds that even if a determination was made, upon utilization of the RAI, that the defendant’s score was below 110, circumstances exist to warrant an upward departure to a Level 3 designation. In this respect, the court possesses discretionary authority to depart from a presumptive risk level based upon the existence of aggravating factors or special circumstances. (People v. Castaneda, 173 AD3d 1791 [4th Dept 2019]; People v. James, 45 AD3d 555 [2nd Dept 2007]) To provide guidance on this issue the court in People v. Mangan, 174 AD3d 1337 [4th Dept 2019] held that certain circumstances warrant “an upward departure inasmuch as it is indicative that the offender posses an increased risk to public safety.” (quoting People v. Colsrud, 155 AD 3d 1601 [4th Dept 2012]). Furthermore, it is has been held “[t]he court’s discretionary upward departure [to a level three risk] was based upon clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument” (People v. Tidd, 128 AD3d 1537 [4th Dept 2015] quoting People v. Sherard, 73 AD3d 537 [1st Dept 2010]) The court in People v. Freeman, 155 AD 3d 794 [2nd Dept 2017] also held that “a court may depart from the presumptive risk level……even absent the Board’s recommendation for a departure.” The court recognizes that a request for an upward departure was not made in this case by the People. However, it has been held that “the court should sua sponte depart from the presumptive risk level when it is clearly evident from the record before the court that special circumstances warrant departure” (People v. Marinconz, 178 Misc. 2d 244, [Bronx County Ct 1998] Upon examination of the defendant’s behavior in the context of the underlying charge, the court finds that the defendant preyed upon and targeted a physically and mentally disadvantaged young woman by creating and then abusing a professional relationship by providing living accommodations and financial support as a means to satisfy his sexual desires. The court finds by overwhelmingly clear and convincing evidence that such conduct is indicative that the defendant poses a risk to public safety. (People v. Ryan, 96 AD3d 1692 [4th Dept 2017]). In addition, it should be noted, the RAI does not take into consideration the fact that the defendant took advantage of D.R.’s vulnerability as means toward satisfying his sexual desires. As proof of these facts, the court need point out the defendant’s admissions as follows: (1) the first time the defendant touched the victim and attempted to kiss her was upon [D.R.] having a “melt down” which included her being upset and “balling her eyes out;” (2) at the defendant’s residence, the defendant encouraged D.R. to sit on his lap in an effort to “check her mental status;” and (3) on October 23, 2018, further unwanted physical contact occurred upon D.R. “having a meltdown because she was losing her apartment”. The defendant’s criminal behavior was calculated and callous. Further, the court finds it especially egregious since the defendant took advantage of D.R. during her times of distress. Thus, the court finds by clear and convincing evidence that aggravating circumstances exist warranting the upward departure based upon the defendant’s manipulative and calculated behavior which directly relates to his risk to re-offend. (People v. Abraham, 39 AD3d 1208 [4th Dept 2007]) In addition, an upward departure is also appropriate as the defendant posses a risk to public safety and to the individuals that he may come into contact within the community at large. NOW, after due deliberation, it hereby is; ORDERED, ADJUDGED AND DECREED, that pursuant to Corrections Law §168-n(1) the defendant is found to be a Level 3 sex offender; and it further is ORDERED, ADJUDGED AND DECREED, that the defendant is designated a predicate sexual offender as having been found guilty of two or more sex crimes; and it further is ORDERED, ADJUDGED AND DECREED, that either party may appeal from this Order pursuant to Correction Law §168-d(3). Dated: March 9, 2020
