WRITTEN DECISION OF FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER RISK LEVEL DETERMINATION HEARING Defendant stands convicted after pleading guilty on the above-captioned indictment (#1778-1980) to Rape in the First Degree (PL §130.35). The defendant was paroled, and while on parole was convicted of Grand Larceny in the Fourth Degree on January 16, 1985, and then was paroled again, and convicted of Murder in the Second Degree on September 19, 1988. Defendant was sentenced to 18 years to life on the Murder conviction. The Parole Board granted the Defendant a release date of August 4, 2020. On July 30, 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 07/15/20; Risk Assessment Instrument and Case Summary prepared by the People dated 07/28/20; statement of victim with initials EF, Plea minutes of indictment #1362-1987, Incarceration Record, and New York State Division of Criminal Justice Services paperwork regarding the Defendant’s criminal history. RISK ASSESSMENT FACTOR: The Court first reviews the Risk Assessment Instrument prepared by the Board of Examiners of Sex Offenders dated 07/15/20. That document assessed the Defendant ten (10) points under risk factor 1 for the Defendant’s use of forcible compulsion, twenty-five (25) points under risk factor 2 for sexual intercourse and deviate sexual intercourse, ten (10) points under risk factor 8 for the age of the Defendant being 20 or less, fifteen (15) points under risk factor 9 for the Defendant having a prior history of a non-violent felony, fifteen (15) points under risk factor 11 for the Defendant having a prior history of drug or alcohol abuse, ten (10) points under risk factor 13 for the Defendant’s unsatisfactory conduct while confined. The Board’s instrument results in a total of eighty-five (85) 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 07/28/20. The People concur with the Board’s assessment regarding risk factors 2, 8, 9, 11, 13. However, the People’s Instrument urges further points be assessed in several different areas: fifteen (15) points under risk factor 1 for inflicting physical injury and ten (10) points under risk factor 12 for the Defendant not accepting responsibility. The People’s instrument results in a total of one-hundred (100) points which would result in a presumptive level two (moderate risk to re-offend) designation. The Defendant urges this Court to follow the Board’s Risk Assessment Instrument with respect to risk factors 1, 2, 8, 9, and 13, but to refuse to assess fifteen (15) points under risk factor 11 for Defendant having a drug or alcohol abuse history. The Defendant’s assessment results in a total of seventy (70) points which would result in a presumptive level one (low risk to re-offend) designation. 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 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 ten (10) points for the Defendant’s use of forcible compulsion. This is established by the Board’s case summary dated 07/15/20, which states: “He engaged in sexual intercourse, anal intercourse and also put his hands on her breasts by forcible compulsion. The Assistant District Attorney (ADA) indicated that Mr. France initially contended that there was no force involved. However, the victim was admitted to the hospital and there was a mass of bruises all over her body. Additionally, a rape kit was administered and there was sperm found in her anus. Her underpants were blood soaked.” This is further established by the statement of EF, which states: “He then said he would give me to the count of three for an answer and then he was going to do what he wanted […] Then he pushed me back on the ground and we started struggling again. He then grabbed me by my throat and started choking me. He said you better do what I want. I then stopped struggling.” 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 dated 07/15/20, which states: “He engaged in sexual intercourse, anal intercourse and also put his hands on her breasts.” This is further established by the statement of EF, which states: “I didn’t want to but he put his penis by my mouth and I turned my head away but he forced my head back. He put his penis in my mouth and said your [sic] not doing it the way I want it done and then said forget it […] He then put his penis in my vagina and had sex with me […] He then got up and turned me around and put his penis into my rectum.” 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 Case Summary dated 07/15/20, which states “He was 17 years of age at the time of the offense.” Under risk factor 9, “Number and Nature of Prior Crimes,” the Defendant is properly assessed fifteen (15) points for the Defendant having a prior non-violent felony history. This is established by the Board’s case summary dated 07/15/20, which states: “the instant offense occurred on July 7, 1980.” The Case Summary further notes that “His 1988 PSI indicates that in 1978, he was arrested “for Attempted Robbery in the 1st Degree, pleaded guilty to Attempted Robbery in the 3rd Degree, and adjudicated a Juvenile Delinquent.” 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 dated 07/15/20, which states: “Mr. France reported during the PSI interview that he experimented with and used all drugs including LSD, PCP, marijuana, mescaline, valium, amphetamines, seconals and heroin. He admitted getting drunk on Friday and Saturday nights. He was told he was a narcotic abuser in the jail and asked about entering a drug program. DOCCS screening indicated that he scored in the “Strong Suggestion” range on the Michigan Alcohol Screening Test (MAST) and that cocaine and marijuana were used at the time of his 1988 offense. As previously noted, he was under the influence of marijuana and alcohol during the instant offense and attributed his entire criminal history to his drug use. He has received several disciplinary sanctions for Drug Use while incarcerated. He was referred to the Alcohol and Substance Abuse Treatment (ASAT) program and completed it on July 5, 2015.” This is further established by the Incarceration Disciplinary records of the Defendant, which reflect at least nine (9) jail infractions for drug/alcohol use, including: On 07/06/14, while incarcerated, defendant was found guilty of a Tier 3 violation for drug use. On 09/14/13, while incarcerated, defendant was found guilty of a Tier 3 violation for drug use. On 08/10/11, while incarcerated, defendant was found guilty of a Tier 3 violation for urinalysis test and drug possession. On 09/11/08, while incarcerated, defendant was found guilty of a Tier 3 violation for drug use. On 12/28/01, while incarcerated, defendant was found guilty of a Tier 3 violation for drug possession. On 02/06/00, while incarcerated, defendant was found guilty of a Tier 3 violation for drug possession. On 02/04/99, while incarcerated, defendant was found guilty of a Tier 3 violation for drug use. On 02/21/96, while incarcerated, defendant was found guilty of a Tier 3 violation for alcohol/intoxication. On 07/20/93, while incarcerated, defendant was found guilty of a Tier 3 violation for drug use. Under risk factor 12, “Acceptance of Responsibility,” the Defendant is properly assessed ten (10) points for the Defendant’s failure to accept responsibility. This is established by the Board’s case summary dated 07/15/20, which states: “He said that he asked [the victim] to have sex and that she agreed […] He noted he pled guilty to the sex offense because he was aware of how much time he could get for each of the burglaries. He stated, ‘I know in my own mind I didn’t do it.‘ He verbalized anger at the victim for bringing the present charges and felt as though she did so in order to cover for herself. He also verbalized that he would someday, somehow, get revenge for her making up the charge.” [Emphasis added] 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 dated 07/15/20, which states: “His conduct while supervised is considered unsatisfactory due to his two felony convictions while under parole supervision. Additionally, while incarcerated since 1988, he has received 51 Tier II and 28 more serious Tier III disciplinary violations resulting in 2,621 days in specially housing or keep lock.” As more fully described above, the Court’s assessment based upon the risk assessment factors totals ninety-five (95) points which results in a presumptive risk level two (moderate risk to re-offend). OVERRIDES: Neither the Board nor the People sought any overrides. DEPARTURES: The Board did not seek any departures, however the People seek an upward departure on the basis that the Risk Assessment Instrument does not adequately take into account 1) the Defendant committed and was convicted of murder for hire subsequent to instant offense, and 2) the Defendant verbalized threats that he would exact revenge upon the victim for making up the charge. 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 People’s application for upward departure on the basis that Defendant committed a subsequent murder for hire, 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 Defendant argues that this Court should not consider any subsequent criminal conduct on the Defendant’s part in consideration of his SORA designation. However, this position is contrary even to the Risk Assessment Guidelines themselves, which indicate that subsequent criminal history “may be the basis for an upward departure if it is indicative that the offender poses an increased risk to public safety.” Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 14 [1997 ed]. To that end, in People v. Buss, 44 A.D.3d 634, 635 (2nd Dept, 2007), the Appellate Division upheld an upward departure for a subsequent attempted murder committed while the Defendant was still on parole, as it provided a reason to believe that the offender poses an increased risk to public safety. The Court finds that, consistent with People v. Buss, 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. This Court notes that if a conviction for Attempted Murder (as found in People v. Buss) demonstrated an increased risk to the Appellate Division, a conviction for a completed Murder, as presented in the instant case, demonstrates an extreme risk. 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 Board’s case summary, which states: “subsequent to the instant offense and while on parole, he was convicted of Grand Larceny in the Fourth Degree on January 16, 1985 and was sentenced to 1½ to 3 years in DOCCS. He was released to parole on December 17, 1986 and had his parole revoked on November 14, 1988, after he was convicted of Murder in the Second Degree, on September 19, 1988. He was sentenced to 18 years to life for this offense, which according to the 1988 PSI report involved him, acting in concert with another, punching, choking and stomping on the throat of the victim thereby causing the death of the woman. He noted that by committing this crime, his drug debts were paid off and he was given 7 grams of cocaine. This is further established by Defendant’s sworn plea minutes for the murder case under Indictment #1362-1987, in which the Defendant allocuted that he was solicited to kill a female victim for money and drugs: MR. COLLINS: And prior to encountering her at that time, had you had discussions with a person known to you as Michael Odorisio, with respect to doing anything to Tracy Amrhein? THE DEFENDANT: Yes, I had. MR. COLLINS: Can you tell me about those conversations, please? THE DEFENDANT: Mr. Odorisio wanted me to kill Tracy to clear a debt for money and cocaine that I owed him. MR. COLLINS: Approximately how much did you owe him? THE DEFENDANT: Approximately $7,000. (Plea minutes of #1362-1987, 6:17) The fact that Defendant actually committed the intentional murder of the female victim was further established in the plea allocution as follows: MR. COLLINS: What happened? THE DEFENDANT: Tracy had told me she knew what I wanted. She turned around, and she un-buttoned her pants, and I got upset. She wouldn’t listen to me. I hit her, and then I choked her to death. MR. COLLINS: Where did you strike her? THE DEFENDANT: In the face. MR. COLLINS: How did you, as you say, choke her to death? THE DEFENDANT: With my hands. MR. COLLINS: And how long a period of time was it that you had your hands around her throat? THE DEFENDANT: Approximately five minutes. MR. COLLINS: And during that time, did she struggle against you? THE DEFENDANT: Very little. MR. COLLINS: Did there come a time while your hands were around her throat that she stopped moving? THE DEPENDANT: Yes, there did. MR. COLLINS: What did you do in addition to that, at that time? THE DEPENDANT: I stepped on her throat to make sure she was dead. (Plea minutes of #1362-1987, 13:7-14:7) The fact that the murder was committed for hire was further established as follows in the plea minutes: MR. COLLINS: And did you receive payment from him at that time for what you had done? THE DEPENDANT: Yes, I did. MR. COLLINS: Can you tell us what you received? THE DEPENDANT: Approximately seven grams of cocaine. MR. COLLINS: What happened as regards the debt you had previously owed him? THE DEPENDANT: It was cleared. MR. COLLINS: And how much money was that? THE DEFENDANT: Approximately $7,000. (Plea minutes of #1362-1987, 18:21-19:8) This is further established by the NYSID paperwork which indicates that beyond the rape conviction of the above-captioned indictment, the defendant plead guilty under Indictment #1362-1987 to Murder on October 17, 1988, and was sentenced to a term of incarceration of 18 years to life. This Court finds that the People have established, by clear and convincing evidence, that Defendant committed a murder for hire subsequent to the above-captioned sex offense conviction that is 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. This court has done so, and 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 request for an upward departure satisfies the third and final step of the analysis. The People’s application for an is granted and this Court raises the risk level to level three. Now turning to the three-step process as regards the People’s application for upward departure on the basis that Defendant made a threat to obtain revenge upon the female victim for her initiation of the charges resulting in the above-captioned indictment, 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 include as an override a “recent threat to reoffend by committing a sexual or violent crime.” The Guidelines further articulate, however, that there is no strict time limit for such an override, indicating that a threat to reoffend may create an increased likehood of reoffense or danger to the community even when made more remotely, when “there is cause to believe that the offender may act upon it.” Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 19 [1997 ed]. As the defendant has demonstrated, both by the instant offense and his subsequent Murder conviction, that he is willing and able to utilize deadly physical force to obtain his desired outcome, this Court finds that his threat to obtain revenge upon a crime-victim presents a higher likelihood of reooffense 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. 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 Board’s case summary dated 07/15/20, which states: “He said that he asked [the victim] to have sex and that she agreed […] He noted he pled guilty to the sex offense because he was aware of how much time he could get for each of the burglaries. He stated, ‘I know in my own mind I didn’t do it.’ He verbalized anger at the victim for bringing the present charges and felt as though she did so in order to cover for herself. He also verbalized that he would someday, somehow, get revenge for her making up the charge.” [Emphasis added] This Court finds that the People have established, by clear and convincing evidence, that Defendant has made a threat to obtain revenge upon the female victim for her initiation of the charges resulting in the above-captioned indictment. 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. This court has done so, and 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 request for upward departure satisfies the third and final step of the analysis. The People’s application is granted and this Court raises the risk level to level three. The Defendant has made an application for a downward departure on the basis that the Risk Assessment Instrument does not adequately take into account 1) the Defendant’s act of saving the life of a fellow inmate while incarcerated, 2) the Defendant’s heart attack in 2018, and 3) the Defendant’s progress in several programs including the alternatives to violence program. Now turning to the three-step process as regards the Defendant’s application for downward departure on the 3 stated bases, the Court must initially decide if the Defendant has established, as a matter of law, the existence of an appropriate mitigating factor, namely, a factor which tends to establish a lower 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 Court finds that the Defendant’s proffered bases are not mitigating factors in that they do not establish a lower danger to the community and are adequately taken into account by the Guidelines. Therefore, the Defendant’s bases for downward departure fails to satisfy the first step of the analysis. Even assuming, arguendo, they were to satisfy the first step of the analysis, the Court has engaged in the second step of the analysis, and the Defendant has failed to adduced, by a preponderance of the evidence, the existence of these purported mitigating factors. Therefore, the Defendant’s bases for downward departure fail to satisfy the second stop of the analysis. Even assuming, arguendo, they were to satisfy the first and second steps of the analysis, the Court has engaged in the third step of the analysis by weighing the purported mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over-assessment of the Defendant’s dangerousness and risk of sexual recidivism. This Court determines that the totality of the circumstances does not warrant a downward departure on any of the purported mitigating factors. Therefore, the Defendant’s bases for downward departure fail to satisfy the third and final step of the analysis. The Defendant’s application for downward departure is denied. 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), pursuant to Correction Law §168-a(3). This shall constitute the decision and order of the Court. Dated: July 31, 2020
