DECISION AND ORDER On October 23, 1987, the defendant was convicted, after trial, of the crimes of Sodomy in the First Degree, in violation of Penal Law (PL) section 130.50, three counts of Sexual Abuse in the First Degree, in violation of PL section 130.65, both registerable offenses under the Sex Offender Registration Act (SORA) (see Correction Law §168-a [2][a][i]), and other related charges. On November 18, 1987, he was sentenced to an aggregate term of 18 to 50 years incarceration. Based on his convictions for Sodomy in the First Degree and Sexual Abuse in the First Degree, the defendant was certified as a sex offender. On March 18, 2020, a SORA determination hearing was held, pursuant to Correction Law section 168-n, to determine the defendant’s sex offender classification level based on Guidelines developed by the Board of Examiners of Sex Offenders (Board). The Board’s Guidelines are designed to assess the risk of a repeat offense by the sex offender and his threat to public safety (see Correction Law §168-l [5]). Those Guidelines set forth a schedule of risk factors, known as a Risk Assessment Instrument (RAI), for which a specified number of points are assessed. As mandated by the Correction Law, the prosecution has the burden of proving, by clear and convincing evidence, the facts that support each particular risk factor for which it seeks an assessment (see Correction Law §168-n [3]). “The sentencing court has wide discretion with regard to the conduct of the hearing and the type and nature of the testimony and evidence to be considered [as the] [f]ormal rules of evidence are inapplicable…and reliable hearsay evidence may be” considered (People v. Salaam, 174 Misc 2d 726, 731 [Sup Ct, NY County 1997]). “A sex offender facing risk level classification under the [SORA] has a due process right to be present at the SORA hearing but his presence at this noncriminal proceeding is entirely voluntary” (People v. Porter, 37 AD3d 797, 797 [2nd Dept 2007]). To determine if a defendant has waived his right to be present at a SORA hearing, “evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence” (id.). Reliable hearsay evidence is admissible to establish a waiver (id.). On March 17, 2020, prior to the SORA hearing, the court received an affirmation from Mr. Feldman, the defendant’s attorney, stating that the defendant was waiving his appearance at the hearing. The affirmation stated that Mr. Feldman spoke with the defendant on March 17, 2020, and that due to the current pandemic caused by the Coronavirus, the defendant expressed concern in appearing in court and did not want to risk being exposed to the virus. The affirmation further stated that the defendant was aware of the date of the hearing, that he understood he had a right to appear at the SORA hearing, and that if he did not appear the hearing would proceed in his absence. Furthermore, prior to the start of the hearing, Mr. Feldman reiterated the fact that he spoke to the defendant and that the defendant wished to waive his appearance at the SORA hearing. Therefore, this court accepts Mr. Feldman’s representations as an officer of the court and finds that the defendant knowingly, intelligently, and voluntarily waived his right to be present at the SORA hearing (see People v. Jackson, 139 AD3d 1031 [2nd Dept 2016]; People v. Correnti, 139 AD3d 689 [2nd Dept 2016]; People v. Wall, 112 AD3d 900 [2nd Dept 2013]; People v. Reid, 49 AD3d 338 [1st Dept 2008]). In making its determination regarding the defendant’s sex offender classification level, the court considered the RAI and case summary prepared by the Board, the grand jury minutes, the indictment, the synopsis sheet, the defendant’s arrest record, the defendant’s written submission including the exhibits attached therein, the oral arguments made at the hearing and the letter submitted by defense counsel after the hearing. I now make the following findings of fact and conclusions of law: I find that the People have established facts by clear and convincing evidence which support the assessment of the following number of points for the following factors: 30 points for Risk Factor 1 — Use of Violence — in that the People established, through the grand jury testimony of the complainant, that the defendant possessed a knife, told the complainant and her family that if everyone remained quiet no one would get hurt, and that when the complainant’s husband returned home from work, the defendant struck him with a bat and hammer. 25 points for Risk Factor 2 — Sexual Contact with Victim — in that the People established, through the grand jury testimony of the complainant, that the defendant engaged in oral and anal sexual conduct with the complainant. 20 points for Risk Factor 7 — Relationship with Victim — in that the People established, through the grand jury testimony of the complainant, that the complainant did not know the defendant. 5 points for Risk Factor 9 — Number and Nature of Prior Crimes — in that the People established, through the defendant’s arrest record, that the defendant was previously convicted of a misdemeanor. The defendant’s arrest record establishes that on March 24, 1986, here in Kings County, the defendant was convicted of Assault in the Third Degree, a class A misdemeanor, in violation of PL section 120.00. 15 points for Risk Factor 11 — Drug or Alcohol Abuse — in that the People established, through the synopsis sheet and case summary, that the defendant has a history of alcohol abuse. As set forth in the case summary, in his treatment sessions with the Sex Offender Counseling and Treatment Program (SOCTP), the defendant admitted he was abusing alcohol at the time of the offense. The case summary also reflects that defendant scored in the “Alcoholic” range on the Michigan Alcoholism Screening Test at intake. Additionally, the case summary and synopsis sheet make reference to the defendant’s statements to the police at the time of his arrest, namely that the sex was consensual and that the complainant gave him the property to buy crack. Finally, the case summary indicates that the defendant incurred a Tier III sanction for a drugs violation on July 7, 1995. The People have established facts by clear and convincing evidence which support the assessment of a total of 95 points. The court thus imposes without further comment the assessments recommended by the Board and the People, which were not contested by the defendant (see People v. Alemany, 56 AD3d 251 [1st Dept 2008] [judicial findings unnecessary as to uncontested assessments]). The points assessment places the defendant within the purview of a Level 2 sex offender. The People, however, seek an upward departure from Level 2 to Level 3. “A court has the discretion to depart from the presumptive risk level based upon the facts in the record, but a departure from the presumptive risk level is warranted only where ‘there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines’ ” (People v. Riley, 85 AD3d 1141, 1141 [2nd Dept 2011] quoting Guidelines at 4). There must be clear and convincing evidence of a special circumstance to warrant an upward departure from the presumptive risk level (see People v. Wyatt, 89 AD3d 112, 120 [2nd Dept 2011]). The basis of the People’s request for an upward departure is the heinous nature of the crime. The People submit that the defendant’s actions in pushing the complainant and her three children into their home, sexually assaulting the complainant, physically assaulting the complainant’s husband, threatening to sexually assault the complainant’s 11 year old daughter if the complainant did not comply, while the co-defendant stole gifts, all of which occurred on Christmas Eve, are particularly egregious and warrant an upward departure. In support of their request, the People rely on People v. Sorto, 124 AD3dd 744 (2nd Dept 2015), where an upward departure was upheld in light of the heinous nature of the crime which involved the sexual abuse of an infant. Courts have consistently held that the heinous nature of a sex crime may warrant an upward departure (People v. Pavia, 142 AD3d 655, 656 [2nd Dept 2016] [upward departure appropriate based on the heinousness of the underlying sex crimes in which the defendant held a knife to the victim's throat, inserted the handle of a hair brush into the complainant's rectum, and forced her to eat her own vomit]; People v. Shim, 139 AD3d 68, 70-71 [2nd Dept 2016] [upward departure appropriate where "defendant repeatedly punched the victim in the face, placed a knife to her throat, threatened to kill her, put his mouth on her breasts and vagina, attempted to place his penis in her mouth, and put his penis in her vagina against her will" and following the incident, the police responded and found "blood 'everywhere' " and observed the victim's face to be swollen and covered in bruises and dried blood]; People v. Kotler, 123 AD3d 992, 993 [2nd Dept 2014] [upward departure appropriate where "the defendant impersonat[ed] a police officer in order to deceive the victim into stopping her car [and] then kidnapped her at knife point, threatened to kill her, drove her to a remote wooden location where he raped her, and thereafter attempted to destroy the physical evidence of his crime”]; People v. Henry, 91 AD3d 927, 927 [2nd Dept 2012] [upward departure appropriate where defendant and another man kidnapped victim at gunpoint, handcuffed her, drove her to a remote location, and then took turns raping her before holding her for hours longer in captivity until she jumped into a river to escape]; People v. Miller, 48 AD3d 774, 775 [2nd Dept 2008] [upward departure appropriate where the defendant and a co-defendant abducted the complainant and brought her at gunpoint to the defendant's basement where they took her property and repeatedly raped and sodomized her]). There is no question that the defendant’s actions were heinous. However, the issue this court must decide is whether the People have demonstrated, by clear and convincing evidence, a factor that was not adequately taken into account by the Guidelines. Here, the defendant’s violent actions in threatening the complainant and her family and being armed with a dangerous instrument were adequately taken into consideration by the Guidelines in that the defendant was assessed 30 points, the highest score, under Risk Factor 1 — Use of Violence. Moreover, the court notes that according to the Case Summary, it is anticipated that upon his release, the defendant will be supervised on a specialized Community Supervision caseload until the maximum expiration of his sentence in 2036. Accordingly, the People’s request for an upward departure is denied. The defendant moves this court for a downward departure from Level 2 to Level 1. In People v. Wyatt, supra, the Appellate Division articulated a two-prong showing to be made by a defendant seeking a downward departure: i) the identification of a mitigating factor which tends to establish a lower likelihood of re-offense or danger to the community which is of a kind not adequately taken into account by the Board’s Guidelines and ii) the presentation of facts that support the mitigating factor by a preponderance of the evidence. The defendant submits that the court should grant a downward departure because he participated in and completed two treatment programs, he made efforts to better himself while in prison, and that his current age of 60 years and his poor physical condition make him unlikely to re-offend. In support of his application for a downward departure, the defendant submitted an evaluation, referral, and discharge form regarding his sex offender treatment program that he attended while in prison. The months submitted were for September 2003 through June 2004. Despite completing two treatment programs, it appears that an evaluation was provided with respect to only one program. In addition, the comments section on the evaluation form that the defendant provided in Exhibit B state that the defendant satisfactorily completed certain aspects of the program. The defendant also points to the case summary completed by the Board of Examiners (annexed as Exhibit A) which references the discharge summary from the SOCTP that he completed in 2018. The discharge summary indicated that defendant’s acceptance of responsibility, understanding of his sex offending cycle, and development of his release plan/relapse prevention plan were good. An offender’s response to treatment, if exceptional, can form the basis for a downward departure (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [Guidelines] at 17 [2006]; People v. Washington, 84 AD3d 910, 911 [2nd Dept 2011]; see also People v. Figueroa, 138 AD3d 708, 709 [2nd Dept 2016]). While the defendant demonstrated that he participated in and completed sex offender and substance abuse treatment, he failed to establish by a preponderance of the evidence that his response to the treatment was exceptional (People v. Bigelow, 175 AD3d 1443, 1444 [2nd Dept 2019]; People v. Brunjes, 174 AD3d 747, 748 [2nd Dept 2019]; People v. Boutin, 172 AD3d 1253, 1254 [2nd Dept 2019]; People v. Palomeque, 170 AD3d 1055, 1056 [2nd Dept 2019]; People v. Santiago, 137 AD3d 762, 764 [2nd Dept 2016]). The defendant further relies on People v. Walker, 146 AD3d 824 (2nd Dept 2017), and People v. Brewer, 63 AD3d 1604 (4th Dept 2009) for the proposition that defendant’s participation in sex offender treatment programs should be the basis for a downward departure. However, those cases are distinguishable. In Walker, supra, the defendant was convicted of Rape in the Second Degree where the victim’s lack of consent was due to her inability to do so because of her age. In granting the downward departure, the Appellate Division noted that strictly applying the Board’s Guidelines in cases of statutory rape may result in an overassessment of the offender’s risk (Walker, 146 AD2d at 825). Similarly, in Brewer, supra, the Court held a downward departure was appropriate because of the fact that there was only a 4 year age difference between the offender and the complainant and the complainant willingly engaged in the sexual activity. Walker and Brewer were both statutory rape situations where there were no allegations of forcible compulsion. Here, the defendant pushed his way into the complainant’s home while her three children were present, displayed a knife, and forced her to engage in sexual activity with him. The defendant next argues that his efforts to better himself while in prison should warrant a downward departure. The defendant cites to deepening his Christian faith by attending and completing numerous courses and seminars, completing a 120-hour Aggression Replacement Training course, an AIDS education seminar, and a training course on cleaning up blood spills. The defendant also officiated recreational sports games including basketball and football. Although the court commends the defendant for these accomplishments, the court finds these efforts to be unpersuasive when considering the issue of a downward departure. Furthermore, these efforts during defendant’s incarceration are already taken into account by the Guidelines, as evidenced by defendant’s score for Risk Factor 13 — Conduct While Confined (People v. Alexander, 144 AD3d 1008, 1008 [2nd Dept 2016]; People v. Smith, 108 AD3d 1215, 1216 [4th Dept 2013]; People v. Kotzen, 100 AD3d 1162, 1163 [3rd Dept 2012]). The defendant next argues that his current age of 60 makes him less likely to re-offend. Advanced age may constitute a basis for a downward departure (Guidelines at 5; People v. Alvarez, 153 AD3d 645, 646 [2nd Dept 2017]). Here, the defendant relies on People v. Santos, 25 Misc 3d 1212(A) (Sup Ct, NY County 2009), People v. Shelton, 126 AD3d 959 (2nd Dept 2015), and several studies. Shelton, supra, does not support the defendant’s contention. In Shelton, the Second Department specifically held that a downward departure based on the defendant’s age, which was 60 at the time of the hearing, was not warranted. The defendant’s reliance on Santos is also misplaced. In Santos, supra, the Second Department recognized that the downward departure based on advanced age referenced in the Guidelines focuses “only on persons who are so old that their physical capacity to engage in a sex offense has been compromised” (Santos, 25 Misc 3d 1212(A) at *17-18). Here, as in Santos, the defendant has not presented any evidence demonstrating that his age makes him incapable of re-offending. Accordingly, the court finds that the defendant has failed to establish facts in support of this mitigating factor by a preponderance of the evidence (People v. McClendon, 175 AD3d 1329, 1331 [2nd Dept 2019]; Palomeque, 170 AD3d at 1056; People v. Munoz, 155 AD3d 1068, 1069 [2nd Dept 2017]; People v. Garcia, 144 AD3d 650, 651 [2nd Dept 2016]; Santiago, 137 AD3d at 765). The defendant’s burden in establishing by a preponderance that his advanced age is a mitigating factor is also not met by the studies annexed to his submission. These studies represent the minority opinion on whether age affects recidivism rates upon release from prison. For example, “Aging Versus Stable Enduring Traits as Explanatory Constructs in Sex Offender Recidivism” is one opinion regarding whether age should be taken into account in assessing the defendant’s risk of re-offending. While recognizing that some studies have identified aging as a mitigating risk factor, the authors concede that “adjustments for age are not widely accepted or in common use” and that other studies have strongly argued against considering age as a mitigating factor (Howard E. Barbaree, et al., Aging Versus Stable Enduring Traits as Explanatory Constructs in Sex Offender Recidivism: Partitioning Actuarial Prediction into Conceptually Meaningful Components, 39 Crim Just & Behav, 443, 444 [2009]). The defendant also claims that his physical disabilities significantly impede any attempt to re-offend. A debilitating medical condition may support a downward departure as it tends to suggest that an individual is likely to re-offend (People v. Stevens, 55 AD3d 892, 894 [2nd Dept 2008]; see also People v. Williams, 172 AD3d 1923, 1924 [4th Dept 2019]). In Stevens, the Appellate Division found that “the uncontroverted proof at the hearing demonstrated that the defendant now suffers from a debilitating illness which confines him to a wheelchair” (Stevens, 55 AD3d at 894). In Stevens, the defendant’s nurse testified regarding the defendant’s inability to perform simple tasks without assistance and the defendant himself testified that his sexual ability was impaired by his illness. Here, the defendant claims he has had several surgeries, has difficulties walking requiring the assistance of a cane, and must avail himself of a chair when showering because he cannot stand for long periods of time. Unlike the defendant in Stevens, the defendant here has failed to submit any evidence, in the form of medical documentation, testimony or even an affidavit from the defendant, in support of his claim When asked at the hearing whether there was any medical documentation regarding the defendant’s inability to walk or stand, defense counsel responded that he was assigned the case recently and was unable to obtain the defendant’s medical records in time for the hearing. Additionally, because the defendant knowingly and voluntarily waived his right to be present at the hearing, the court was unable to observe the defendant’s physical condition in court. The defendant has failed to show by a preponderance of the evidence that his physical ailments would reduce the risk of recidivism (People v. Collazo, 2020 NY Slip Op 00625, *1 [2nd Dept 2020]; People v. Rodriguez, 2020 NY Slip Op 00444, *2 [2nd Dept 2020]; People v. Jimenez, 178 AD3d 1099, 1101 [2nd Dept 2019]). Finally, the defendant cites to his familial support as a mitigating circumstance to warrant a downward departure. In support, the defendant submitted letters from his sister, brother, and niece, which collectively state that he is a changed man and has accepted responsibility for his actions. The letters also state that the defendant has spent a great deal of time incarcerated and should come home. It is indeed fortunate that the defendant has familial support, however the defendant has failed to show how this familial support established a lower likelihood of re-offending (People v. Tavares-Nunez, 2020 NY Slip Op 00884, 2 [2nd Dept 2020]; Boutin, 172 AD3d at 1255; People v. Saintilus, 169 AD3d 838, 839 [2nd Dept 2019]). Here, defendant’s age, physical condition, sex offender treatment and other educational and rehabilitative efforts while incarcerated, and familial support, neither singly nor collectively, warrant a downward departure (Shelton, 126 AD3d at 960; People v. Torres, 124 AD3d 744, 746 [2nd Dept 2015]; People v. Grubbs, 107 AD3d 771, 773 [2nd Dept 2013]). Accordingly, after considering all the factors set forth by the defendant, his request for a downward departure is hereby denied. CONCLUSION Based on the discussion above and in this court’s discretion, the People’s request for an upward departure and the defendant’s request for a downward departure are hereby denied. Accordingly, based on the clear and convincing evidence before the court establishing an aggregate total assessment of 95 points on the Risk Assessment Instrument, the defendant is designated a Level 2 sex offender. Furthermore, pursuant to Corrections Law Section 168-a (3)(a) and (7)(b), because of the defendant’s conviction to Sodomy in the First Degree, in violation of PL section 130.50, and Sexual Abuse in the First Degree, in violation of PL section 130.65, the defendant is hereby designated a sexually violent offender. This constitutes the decision and order of the court. Dated: April 7, 2020
