DECISION AFTER SORA HEARING Defendant stands convicted after pleading guilty on the above-captioned indictment (#735-1979) to Rape in the First Degree (PL §130.35), and two counts of Criminal Sexual Act in the First Degree (PL 130.50) and was sentenced to 8 1/3 to 25 years of incarceration. Under Indictment #734-1979, Defendant was found guilty by verdict of two counts of Sexual Abuse in the First Degree (PL 130.65) and was sentenced to an indeterminate term of 4 to 7 years of incarceration. Under Indictment #646-1979, Defendant was found guilty by verdict of Murder in the Second Degree (a non-registerable offense) and was sentenced to a term of incarceration. The Parole Board granted the Defendant a release date of July 21, 2020, after which he will be supervised on a Community Supervision caseload for the remainder of his life. On July 7, 2020, this Court conducted a hearing pursuant to Correction Law §168-n to determine the Defendant’s appropriate level of community notification as a convicted sex offender. In making this determination, the Court has considered the following evidence: Risk Assessment Instrument and Case Summary prepared by the Board dated 06/22/20; Risk Assessment Instrument and Case Summary prepared by the People dated 07/07/20, handwritten confession by the Co-Defendant Patrick Wilson dated 03/09/79, typewritten report by Detective Sgt. Robert Misegades of his interrogation of the Defendant dated 03/10/79, handwritten statement by the Defendant regarding Rape and Sodomy charges dated 03/09/79, handwritten statement by the Defendant regarding Sexual Abuse charges dated 03/09/79, transcript of the opening statement at Defendant’s murder trial, letter from Office of the Medical Examiner regarding victim’s cause of death of Nancy Weisensee, 24-page packet of clinical paperwork from the Sex Offender Counseling and Treatment program, 33-page packet of programmatic paperwork from the Sex Offender Counseling and Treatment program, and New York State Division of Criminal Justice Services paperwork regarding the Defendant’s criminal history. RISK ASSESSMENT FACTORS: The Court first reviews the Risk Assessment Instrument prepared by the Board of Examiners of Sex Offenders dated 06/22/20. That document assessed the Defendant thirty (30) points under risk factor 1 for the Defendant’s use of violence while armed with a dangerous instrument, twenty-five (25) points under risk factor 2 for sexual intercourse and deviate sexual intercourse, twenty (20) points under risk factor 7 for having a stranger relationship with the victim, ten (10) points under risk factor 8 for the Defendant’s age at first sex crime being 20 or less, five (5) points under risk factor 9 for the Defendant having a prior history without sex crimes or felonies, and fifteen (15) points under risk factor 11 for the Defendant’s history of drug or alcohol abuse. The Board’s instrument results in a total of one-hundred and five (105) points which would result in a presumptive level two (moderate risk to re-offend) designation. The Court next reviews the Risk Assessment Instrument prepared by the People dated 07/07/20. The People concur with the Board’s assessment regarding risk factors 1, 2, 7, 8, and 11. However, the People’s Instrument urges further points be assessed in several different areas: thirty (30) points under risk factor 3 for having three or more victims, thirty (30) points under risk factor 9 for the Defendant having a prior violent felony history, ten (10) points under risk factor 10 for the Defendant’s prior felony or sex offense occurring less than three years before the instant offense, ten (10) points under risk factor 12 for the Defendant’s lack of acceptance of responsibility, and ten (10) points under risk factor 13 for unsatisfactory conduct while confined. The People’s instrument results in a total of one-hundred and ninety (190) points which would result in a presumptive level three (high risk to re-offend) designation. The Defendant urges this Court to follow the Board’s Risk Assessment Instrument and assess one-hundred and five (105) points, and to refuse to assess the divergent points recommended by the People’s instrument. At a hearing where the Board, People, or Defendant disagree as to the offender’s adjudication, the People bear the burden of proving the facts supporting the determination sought by clear and convincing evidence (see People v. Hernandez, 7 Misc.3d 151, 159 [Bronx Supreme, 2005]). Such a hearing is analogous to a sentencing determination in that the court making the sex offender risk assessment determination has latitude in the type and nature of evidence it may consider and is not bound by the formal rules of evidence (People v. Victor R., 186 Misc.2d 28, 32 [Bronx Supreme, 2000]). In making a determination, the court shall consider and review any victim’s statement and any other relevant materials and evidence submitted by the sex offender and the People (see Id.). It is further noted that the stated purpose for the development of the Sex Offender Guidelines is that the Board, with the assistance of a group of experts with experience in dealing with sex offenders, “would bring academic knowledge and practical acumen to the difficult task of predicting whether a person convicted of a sex crime is likely to re-offend.” See Sex Offender Registration Act, The Risk Assessment Guidelines and Commentary (2006), pg. 1. The responsibility for the final assessment of factor values and the overall determination of a Defendant’s sex offender level lies with the Court however, and while recommendations of factor assessments by the Board or the People may be useful, a Court is not constrained by them (People v. Jusino, 11 Misc.3d 470, 488 (NY Supreme, 2005); citing People v. Dorato, 291 AD2d 580 (3rd Dept, 2002). After careful consideration of all the evidence presented, the Court finds that the People have met their burden of proving the facts underlying their Risk Assessment Instrument by clear and convincing evidence to the extent described below: Under risk factor 1, “Use of Violence,” the Defendant is properly assessed thirty (30) points for the Defendant’s use of violence while armed with a dangerous instrument. This is established by the Board’s case summary, which states: “the instant offense involved Mr. Snyder, at the age of 17 and his co-offender accosting an adult female as she walked to her apartment building on January 18, 1979. Using a knife and after putting a rope around her neck, they forced her into the co-offender’s vehicle. They then parked the car in another vicinity and Mr. Snyder’s co-offender climbed into the backseat, stripped the victim and raped her. He then forced her to perform oral sex on him.” [Emphasis added] Under risk factor 2, “Sexual Contact with Victim,” the Defendant is properly assessed twenty-five (25) points for sexual intercourse and deviate sexual intercourse. This is established by the Board’s case summary, which states: “the instant offense involved Mr. Snyder, at the age of 17 and his co-offender accosting an adult female as she walked to her apartment building on January 18, 1979. Using a knife and after putting a rope around her neck, they forced her into the co-offender’s vehicle. They then parked the car in another vicinity and Mr. Snyder’s co-offender climbed into the backseat, stripped the victim and raped her. He then forced her to perform oral sex on him.” [Emphasis added] Under risk factor 3, “Number of Victims,” the Defendant is properly assessed thirty (30) points for having three or more victims. The Board of Sex Examiner’s Guidelines indicate that this factor is not limited by the number of victims reflected by the indictment, but rather: “the current offense section should be completed on the basis of all of the crimes that were part of the instant disposition. For example: if the defendant pleaded guilty to two indictments in two different counties, both indictments should be considered in scoring the section. If one indictment involved one victim and the other included two victims, and if there is clear and convincing evidence that all three were abused, the offender should receive 30 points (three or more victims) in category 3.” Guidelines Pg 5. The People’s position that there are three or more victims is established by the Board’s case summary. The case summary notes that the Defendant confessed to each of the three victims referenced. The Defendant’s first victim was sexually assaulted on January 18, 1979 as noted by the Board’s case summary, which states: “Using a knife and after putting a rope around her neck, they forced her into the co-offender’s vehicle. They then parked the car in another vicinity and Mr. Snyder’s co-offender climbed into the backseat, stripped the victim and raped her. He then forced her to perform oral sex on him.” [Emphasis added] The Defendant’s second victim was sexually assaulted on March 8, 1979 as noted by the Board’s case summary, which states the offense: “involved Mr. Snyder, at the age of 18, sexually abusing an adult female victim along with a co-offender. The Pre-Sentence Investigation (PSI) Report pertaining to this offense was not available. In his Full Disclosure that he completed in the SOCTP at DOCCS, Mr. Snyder outlined this offense as the third sexual assault he committed with his co-offender. The victim was a stranger. He stated that his co-offender found the victim at a bar and threw her in the back seat of the car with Mr. Snyder. He stated he did not want to hurt this woman and did not want his co-offender to do the same, so he told his co-offender to take the victim back to his place where there were always people around.” The Defendant’s third victim was sexually assaulted on October 19, 1978 as noted by the Board’s case summary, which states that: “following his arrest on March 8, 1979, on charges of sexually abusing this victim, his co-offender confessed to the rape of the victim covered by the instant offense and to the murder of a female hitchhiker that occurred on October 19, 1978, covered by Indictment # 646-79. Mr. Snyder in turn confessed to these offenses.” Under risk factor 7, “Relationship with Victim,” the Defendant is properly assessed twenty (20) points for having a stranger relationship with the victim. This is established by the Board’s case summary, which states: “the instant offense involved Mr. Snyder, at the age of 17 and his co-offender accosting an adult female as she walked to her apartment building on January 18, 1979. […] Per his description of the offense in his Full Disclosure completed in the Sex Offender Counseling and Treatment Program (SOCTP) at DOCCS, this victim was a stranger.” [Emphasis added] Under risk factor 8, “Age at First Sex Crime,” the Defendant is properly assessed ten (10) points for the Defendant’s age at first sex crime being 20 or less. This is established by the NYSID paperwork and Board’s case summary which both list the Defendant’s date of birth as January 9, 1961. The instant offense took place, according to the Board’s case summary, on January 18, 1979. Therefore, after performing its own analysis and calculations, this Court disagrees with the Board’s assertion that the defendant was 17 years old as quoted above, and notes that the Defendant was 18 years old at the time of the instant sexual offense. Under risk factor 9, “Number and Nature of Prior Crimes,” the Defendant is properly assessed five (5) points for the Defendant having a prior non-violent felony history. This is established by the Board’s case summary, which states that on July 21, 1977, the defendant was “adjudicated a Youthful Offender for Petit Larceny. He was sentenced to 3 years of probation. He also pleaded guilty to a Harassment violation on July 28, 1977 and was fined.” Under risk factor 11, “Drug or Alcohol Abuse,” the Defendant is properly assessed fifteen (15) points for the Defendant’s history of drug and/or alcohol abuse. This is established by the Board’s case summary, which states: “Mr. Snyder did admit to probation officials to past experimentation of marijuana and to the sporadic abuse of alcohol. According to DOCCS records, namely his Program and Security Assessment Summary completed for the period of January 14, 1982 to July 14, 1982, Mr. Snyder had a history of narcotics abuse and psychiatric instability. He notably participated in Alcohol and Substance Abuse Treatment (ASAT) as a program assistant and group leader assistant for a period in 1990. He then incurred a Tier III sanction involving a Drug Possession violation on May 20, 2008. He was later referred to the ASAT Program as a dual component (CD/SOP) of the DOCCS SOCTP, designed specifically for inmates who have sex offender treatment and substance abuse treatment needs. He completed both programs on June 27, 2010.” [Emphasis added] This is further established by Page 24 of the SOCTP Programmatic paperwork, entitled “RECEPTION/CLASIFFICIATION SYSTEM CLASSIFICATION ANALYSIS” which states: “Snyder was 17 at the time and had history of mental instability combined with penchant for narcotics abuse.” Under risk factor 13, “Conduct While Confined/Supervised,” the Defendant is properly assessed ten (10) points for the Defendant’s unsatisfactory conduct while confined in Department of Corrections custody. This is established by the Board’s case summary, which states: “His conduct while confined is considered satisfactory but not without incident as he incurred the aforementioned Tier III sanction in 2008. In addition, he has incurred nine Tier II sanctions since 1989.” The substance of these Tier violations, which this Court considers unsatisfactory, are supported by Disciplinary Incident Summaries and described in the People’s case summary which states: “The People are aware of disciplinary issues that arose during the defendant’s incarceration. On 1/15/10, he committed a Tier 2 movement violation resulting in 30 days of recreation suspension. On 5/20/08, he committed a Tier 3 violation for an altered item, contraband and drug possession resulting in 1 month in a separate housing unit, 1 month loss recreation, 2 months package suspension, 3 months loss of clothing permit, 6 months loss of good time. On 8/24/01, he committed a Tier 2 for contraband and it was confiscated. On 2/13/00 he committed Tier 2 violations for creating a disturbance, harassment, disobeying a direct order and received 30 days keeplock and lost phone privileges. On 5/14/99, he committed a Tier 2 violation causing the loss or damage of property and had to pay restitution. On 5/11/98, he committed a Tier 2 violation for being out of place and received 4 days keeplock and 10 days loss of phone privileges and recreation. On 2/1/96, he committed a Tier 2 violation for harassment and disobeying a direct order resulting in 20 days keeplock and 20 days loss of phone privileges. On 3/6/95, he committed a Tier 2 violation for possession of an altered item/flammable material and it was confiscated and he was counseled regarding the behavior. On 10/15/93, he committed a Tier 2 violation in the mess-hall resulting in counseling regarding the behavior. On 4/20/93, he committed a Tier 2 violation for property in an unauthorized location resulting in counseling regarding the behavior.” Some risk factor assessments urged by the People were not established as follows: As for risk factor 9, the People requested an additional twenty-five (25) points be assessed for having a prior violent felony. The People’s case summary alleges “Prior to the above listed convictions, the defendant was convicted for Burglary in the Third Degree, for which he received probation.” However, the NYSID paperwork does not reflect such a conviction nor disposition, and the People failed to establish the conviction or adjudication of this prior felony by the requisite clear and convincing evidence. As for risk factor 10, the People requested ten (10) points based upon the recency of the prior felony. However, the People’s failure to establish the existence of a prior felony adjudication under risk factor 9 also dooms the People’s application for ten (10) points under risk factor 10 “Recency of Prior Felony or Sex Crime.” As the People failed to establish by clear and convincing evidence a prior felony adjudication, they must also fail to establish that such prior felony or sex offense occurred less than 3 years prior to the instant offense. As for risk factor 12, the People requested ten (10) points based upon alleged failure to accept responsibility. However, the People failed to establish that the Defendant has refused to accept responsibility for his criminal conduct. To the contrary, the Board’s case summary states: “He reiterates that he accepts fully responsibility for his actions and indicates he will forever ‘berate and belittle’ himself for participating in his offenses.” At the hearing itself, while the Defendant noted that he had an older accomplice at the time of the offenses, the Defendant also expressed his acceptance of guilt, culpability and responsibility in the criminal acts that are the subject of the hearing. The People have thus failed to establish by clear and convincing evidence their entitlement to points under risk factor 12. As more fully described above, the Court’s assessment based upon the risk assessment factors totals one-hundred and forty-five (145) points which results in a presumptive risk level three (high risk to re-offend). OVERRIDES: The Board does not request an override. However, the People seek an override on two bases: 1) the Defendant has a prior felony conviction for a sex crime, and 2) the Defendant inflicted serious physical injury or caused the death of a victim. The Guidelines counsel that the presence of substantiated overrides “automatically result in a presumptive risk assessment of level 3.” While the Defendant is already presumptively a level 3 based upon the above-described point assessment, and therefore an override would not, in this instance, modify the presumptive risk level, this Court engages in the override analysis for appellate purposes. On the People’s first application for an override, the People’s case summary further articulates their rationale: “The defendant committed multiple sex crimes. One before this conviction and one after this specific crime was committed. The prior sex crime is also a cause for automatic override.” The People are referring to the three sex offenses described above which occurred on January 18, 1979, March 8, 1979, and October 19, 1978. However, it appears from the People’s NYSID paperwork the defendant plead guilty to a sex offense on June 30, 1980 under the above captioned indictment (735-1979), and the other sex offenses were convictions after trial on February 26, 1980 and April 21, 1980. As the Appellate Division, 4th Department noted in People v. Neuer, an override based upon a prior sex offense conviction may only properly be applied when the conviction itself precedes the commission of the instant offense: “Defendant had not yet been convicted of that prior sex crime at the time he committed the present offense. Rather, although defendant committed that prior sex crime approximately five months before committing the present offense, he did not plead guilty to that crime until several months after committing the present offense. For the same reason, we agree with defendant that County Court erred in applying the presumptive override for a prior sex felony because defendant had not been convicted of the prior sex felony at the time he committed the instant offense.” People v. Neuer, 86 A.D.3d 926, 926-927 (4th Dept, 2011) (Internal citations omitted) Therefore, the lack of any sex offense convictions prior to the commission of the instant offense fatally dooms the application for an override on the first proposed basis. On the People’s second application for an override, the People’s case summary further articulates their rationale: “It is the People’s position based on the fact that the defendant committed a murder during the commission of crimes of rape and sodomy there is cause for automatic override to a Level 3.” The facts underlying an override must be established by clear and convincing evidence. See People v. Brown, 302 A.D.2d 919, 920 (4th Dept. 2003). This proposed override is established by the NYSID paperwork which reflects that a New York State trial jury rendered a guilty verdict for Murder in the Second Degree under indictment #646-1979 on February 26, 1980. See Correction 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 and shall not be relitigated.)” This Court notes that when applicable, the override creates a presumption of risk level 3, but does not mandate such a determination. See People v. Reynolds, 68 A.D. 3d 955 (2nd Dept, 2009). However, this Court grants the application for an override based upon the murder of his sex-offense victim, and if the Defendant were not presumptively a level 3 based upon points, this Court would modify the Defendant’s risk level to risk level 3. DEPARTURES: The Board and People seek an upward departure on the basis that the Risk Assessment Instrument does not adequately take into account the defendant’s several sex offenses prosecuted under multiple indictments, and which include the rape and murder of one victim. As above, while the Defendant is already presumptively a level 3 based upon the above-described point assessment and override, and therefore an upward departure would not, in this instance, modify the risk level, this Court engages in the departure analysis for appellate purposes. The Court of Appeals, in People v. Gillotti, 23 N.Y. 3d 841, 861 (2014) elaborated on the three-step analytical process when evaluating an application for a departure from a presumptive risk level: “At the first step, the court must decide whether the aggravating or mitigating circumstances alleged by a party seeking a departure are, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines […] At the second step, the court must decide whether the party requesting the departure has adduced sufficient evidence to meet its burden of proof in establishing that the alleged aggravating or mitigating circumstances actually exist in the case at hand […] at the third step, the court must exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant’s dangerousness and risk of sexual recidivism [Emphasis added and internal citations omitted].” People v. Gillotti, 23 N.Y.3d 841, 861 (2014) Addressing the three-step process as regards the application for upward departure by the People and Board, the Court must initially decide if the People have established, as a matter of law, the existence of an appropriate aggravating factor, namely, a factor which tends to establish a higher likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines (See People v. Vaillancourt, 112 AD3d 1375 (4th Dept, 2013); Guidelines, pg. 4. The Risk Assessment Guidelines themselves indicate that the proposed basis would be appropriate for an upward departure: “Notably, [category 9] looks to an offender’s prior criminal history. However, some sex offenders have concurrent or subsequent offenses not scored in this category. Although such concurrent or subsequent criminal history is not covered by this particular category, it may be the basis for an upward departure if it is indicative that the offender poses an increased risk to public safety.” [Emphasis added] So too, the Appellate divisions have recognized the appropriateness of this basis. See People v. Perez, 158 A.D.3d 1070, 1071 (4th Dept, 2018), People v. Colsrud, 155 A.D.3d 1601, 1602 (4th Dept, 2017), People v. Scales, 134 A.D.3d 790, 792 (2nd Dept, 2015) (“The defendant’s concurrent offense constituted an aggravating factor of a kind, or to a degree, that was otherwise not adequately taken into account by the SORA Guidelines”). The Court finds that the People’s proffered basis is an aggravating factor in that it establishes a higher danger to the community and is not adequately taken into account by the Guidelines. There is no risk factor that adequately addresses this heightened danger. Therefore, the People’s basis for upward departure satisfies the first step of the analysis. The Court must next decide whether the People have adduced, by clear and convincing evidence, the existence of this aggravating factor. This is established by the NYSID paperwork which indicates that beyond the rape conviction of the above-captioned indictment, the defendant was found guilty after trial of Sexual Abuse in the First degree on April 21, 1980 under indictment 734-1979, and of Murder in the Second Degree on February 26, 1980 under indictment 646-1979. This is further established by the Board’s case summary, which provides a factual account underlying these convictions. The facts underlying indictment 734-1979: “involved Mr. Snyder, at the age of 18, sexually abusing an adult female victim along with a co-offender. […] In his Full Disclosure that he completed in the SOCTP at DOCCS, Mr. Snyder outlined this offense as the third sexual assault he committed with his co-offender. The victim was a stranger. He stated that his co-offender found the victim at a bar and threw her in the back seat of the car with Mr. Snyder. He stated he did not want to hurt this woman and did not want his co-offender to do the same, so he told his co-offender to take the victim back to his place where there were always people around. Mr. Snyder was living in a rooming house. He stated that everything worked out as planned and no harm came to her. The Board previously spoke with Laurie Moroff of the Suffolk County District Attorney’s Office via telephone on May 31, 2019, regarding Mr. Snyder’s co-offender’s case. She indicated that the offense involved forcible sexual abuse of the victim and Mr. Snyder and his co-offender had taken her to Mr. Snyder’s apartment in a rooming house to sexually assault her. The offense was interrupted when his housemates entered the room. The victim was being molested and was observed naked from the waist up.” [Emphasis added] The facts underlying indictment 646-1979 are described by the Board’s case summary as follows: “Regarding his Murder conviction, this matter, according to the Suffolk County Department of Probation PSI Report dated February 14, 1980, occurred on the night of October 19, 1978. Mr. Snyder and his same co-offender were driving when they passed a woman who was hitchhiking. They picked her up and after driving a short distance, Mr. Snyder reached around from the back seat of the vehicle and put a rope around the victim’s neck. His co-offender proceeded to drive to a wooded area near the Long Island Railroad tracks. There the victim was forced to remove her clothing, and Mr. Snyder forced her to perform oral sex on him in the rear seat of the vehicle. When this was finished, his co-offender climbed over the rear seat and raped the victim. The victim then requested to be permitted to urinate and was allowed to leave the vehicle. She then attempted to escape. Mr. Snyder pursued her, dragged her to the ground and held his hand over her mouth to muffle her screams as he choked her to unconsciousness. They then carried the victim to the railroad tracks and put her down on the tracks. At approximately 1:17 A.M. on October 20, 1978, a train proceeding eastbound struck the victim’s body cutting her into several pieces causing her death. Mr. Snyder admitted to raping this victim along with his co-offender in his Full Disclosure completed in the SOCTP.” [Emphasis added] The murder is further established by the letter from the Chief Medical Examiner who noted that, following an autopsy of the October 19, 1978 victim, it was determined that the cause of death was certified as: “Asphyxia by ligature and manual strangulation; multiple injuries and dismemberment/ Homicide/ placed on railroad track after strangulation, and run over by train.” The Defendant’s admissions and documentary proofs of the convictions of concurrent sex offenses establish, by clear and convincing evidence, that Defendant committed multiple concurrent sex offenses that are not adequately taken into account by the Risk Assessment Instrument. Therefore, the People’s basis for upward departure satisfies the second step of the analysis. Finally, the Court must exercise its discretion by weighing the aggravating factor to determine whether the totality of the circumstances warrants a departure to avoid an under-assessment of the Defendant’s dangerousness and risk of sexual recidivism. On this issue, the Defendant argues that the Court should consider as mitigation the defendant’s successes while incarcerated with respect to certification programs, sex offender treatment programs, and his relative youth at the time of his crimes. This Court has considered the arguments of counsel and the conduct of the defendant while incarcerated, both positive (such as programs completed), and negative (such as accruing at least ten disciplinary infractions). This Court determines that the totality of the circumstances warrants an upward departure to avoid an under-assessment of the Defendant’s dangerousness and risk of sexual recidivism. Therefore, the People’s basis for upward departure satisfies the third and final step of the analysis. The People’s application for an upward departure is granted. Considered cumulatively and under the totality of the circumstances, community safety would best be served by a level three determination. Accordingly, the Defendant is hereby designated a level three sex offender, and designated a Sexually Violent Offender based upon the instant convictions for Rape in the First Degree (130.35), Criminal Sexual Act in the First Degree (PL §130.50) and Sexual Abuse in the First Degree (PL §130.65), pursuant to Correction Law §168-a(3). This shall constitute the decision and order of the Court. Dated: July 21, 2020
