People v. I.G.

On November 23, 2020, this court conducted a virtual SORA hearing. The Board of Examiners of Sex Offenders (“the Board”) calculated that defendant’s Total Risk Factor Score was 90 points, a calculation with which the People agreed and which defendant does not contest. Because defendant pled guilty to Course of Sexual Conduct Against a Child in the First and Second Degrees (PL §§130.75[1][b] and 130.80[1][a]), the court found that defendant must be designated a Sexually Violent Offender, Corr. Law §168-a (3). While not challenging the conclusion that his presumptive risk level is Level Two, based on the Total Risk Factor Score of 90, defendant moves for a downward departure to a Level One. The People oppose. For the reasons that follow, the motion is denied.¹ The Parties’ Contentions Defendant argues that his current risk of reoffending is low, and therefore Level Two does not accurately establish his risk of reoffense (H 11). His principal claim is that his “exemplary conduct” while serving his sentence, called exemplary because he did not have any disciplinary infractions while incarcerated for almost 10 years, is a mitigating circumstance not adequately taken into account by the Board (Defense Letter of November 6, 2020 ["Def Ltr"] p 6; H 11-12, 27).² Although no points were added to his risk assessment score under Factor 13 for unsatisfactory conduct while incarcerated, defendant argues that his behavior “stands in contrast to an offender who has a moderate or even a minor disciplinary history” (Def Ltr p 7), who would also have no points added under this risk factor. Defendant argues that because he spent his time avoiding conduct for which he would receive infractions and instead successfully pursuing vocational training, merely having no points added to his score overstates his risk for sexually reoffending. Therefore, the court should depart downwardly. Defendant points to other factors that he also claims mitigate his risk of reoffending. While serving his sentence, he has “gained vocational skills, maintained steady employment, excelled in rehabilitative programming, and deepened his Christian faith” (id. p 3). Defendant also claims that DOCCS’s “cognitive behavioral therapy-based programming” — including Alcohol and Substance Abuse Treatment (“ASAT”), Aggression Replacement Training (“ART”) and Sex Offender Counseling and Treatment (“SOCTP”) — provided him the opportunity “to address the myriad issues that had remained untreated at the time of his offense: his childhood history of sexual and physical abuse, PTSD from his military service, and a dependence on substances and sexuality” (id. p 4).³ Moreover, when released to serve 10 years of post-release supervision, he will be “on a specialized sex offender caseload” and will be “required to engage in additional sex offender and substance abuse counseling until the program deems it appropriate to discharge him” (id. p 5). Finally, defendant argues that he has a low statistical likelihood of reoffending because of his age. He is now 58 years old, which he claims is a mitigating factor that the court should also weigh in considering the totality of the circumstances here (id. p 9). “Statistical research has shown that individuals with sex offense convictions who are above the age of 40, and particularly once they attain the age of 60, reoffend at far lower rates than younger individuals” (id. p 8), and also shows that “offenders with only one sex offense conviction reoffend at lower rates than those who have had prior sex offenses” (id. p 9).⁴ The People oppose the motion in all respects. They argue that the Board already took into account all of the factors defendant cites in calculating his Risk Factor Score, including his conduct while incarcerated (H 19-23). People v. Williams, 148 AD3d 540 (1st Dept 2017), on which defendant relies (Def Ltr p 7) (H 23), is distinguishable. Moreover, “defendant’s conduct while he was in prison is not exemplary but it is expected;” nor was it “completely surprising, given what we know about the defendant’s life history” as reflected in the letters from friends and family that he submitted to the court in advance of his sentencing (H 23-24). As for the fact that he will not be able to live near or with children after his release, the People argue that he “has not been in the community yet to have been tested with the ability to manage the urges that he had before or the situations that he has been in before to give this Court confidence that he will not reoffend” (H 26). Analysis A defendant who seeks a downward departure from the presumptive risk level has the initial burden of identifying, as a matter of law, an appropriate mitigating factor, that is, a factor which tends to establish a lower likelihood of sexually reoffending or danger to the community and which is of a kind, or to a degree, that is not adequately taken into account by the Guidelines. The defendant must also establish facts in support of the existence of the mitigating factor by a preponderance of the evidence. If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant’s dangerousness and risk of sexual recidivism (see People v. Gilotti, 23 NY3d [841] at 861 [2014], People v. Champagne, 140 AD3d 719 [2d Dept 2016]). People v. Perry, 165 AD3d 990, 991 (2d Dept 2018) (unofficial citations omitted). The fact that defendant did not accumulate any disciplinary infractions while he was serving his sentence may show that his conduct while incarcerated was exemplary, but it does not warrant a downward departure. As the People correctly argue, Risk Factor 13 already takes his behavior in prison into account by not adding points for unsatisfactory behavior. Cf. People v. Garcia, 153 AD3d 735, 736-37 (2d Dept 2017) (SORA court should not have upwardly departed from presumptive risk level, where defendant’s poor prison record was adequately taken into account by Guidelines). The fact that “having even a moderate disciplinary history in prison, such as a Tier Three infraction from years earlier or several Tier Two infractions, is not sufficient to assess points in this category” (Def Ltr p 7) does not change the analysis, because the court must take “an individualized approach” in every case where the defendant seeks a downward departure, People v. Davis, 179 AD3d 183, 187-88 (2d Dept 2019). Indeed, doing so shows why the People are correct when they argue that defendant’s reliance on People v. Williams, supra, is misplaced, because the facts of that case are so different from the facts here. Williams “present[ed] one of the rare cases in which [the Appellate Division held that it] should exercise [its] discretion to depart downward from defendant’s presumptive risk assessment,” 148 AD3d at 540. When he was 20 years old and suffering from alcoholism, Williams raped and robbed a 22-year-old woman after he used PCP and marijuana, id. In the 30 years since he committed those crimes and an unrelated robbery, he took “major steps to turn his life around,” including obtaining his GED, associate’s degree and two bachelor’s degrees, and “[t]he attorney who assisted him with his parole application ha[d] offered to mentor him” in his pursuit of a law degree, id. at 541. Williams also completed “therapeutic programming related to substance abuse and nonviolent conflict resolution,” acquiring counseling skills and becoming a program facilitator. His rehabilitative efforts were so extraordinary that his attorney and two corrections officers spoke or wrote letters of recommendation on his behalf, id. at 541-42.⁵ Moreover, Williams suffered from a decline in mobility while incarcerated, having fallen down a flight of stairs and suffering multiple disk herniations that required surgery and from which he continued to suffer, id. at 542. In concluding that a departure from a Level Three to a Level Two was warranted, the court observed, inter alia, that having a score of zero under Risk Factor 13 “d[id] not adequately capture the exceptional degree to which defendant has worked to rehabilitate himself,” id. at 543. But this was only one of many factors leading to the result in Williams, and hardly stands for the proposition that a downward departure is warranted merely because “[t]he Guidelines do not differentiate between an offender with a minor or moderate disciplinary record and one whose conduct has been exemplary” (Def Ltr p 7). Even less persuasive is defendant’s argument (id. fn 5) that “the Guidelines Commentary even suggests that a downward departure may be appropriate when an offender’s excellent conduct is not adequately taken into account by a category.” Defendant illustrates this point by arguing that “[u]nder Factor 12, the Commentary notes that ‘[a]n offender’s response to [sex offender] treatment, if exceptional, can be the basis for a downward departure,’ even though the Risk Assessment Instrument directs the evaluator to score zero points under Factor 12 for ‘acceptance of responsibility’ based on the offender’s participation in treatment” (id.). Albeit through no fault of his own, defendant has not completed sex offender treatment yet, and he acknowledges that he “will be required to complete years or more of sex offender and substance abuse treatment” (id. p 8). Commentary from Risk Factor 12 is therefore inapposite here.⁶ Defendant also argues that his “prison rehabilitation reduces his future risk of reoffense in concrete ways” (id. p 8). This is simply not borne out by the materials he has submitted in support of this motion, which include a Pre-Pleading Memorandum prepared by a forensic psychologist, Stephen Kaplan, PhD, that defendant submitted to the court on January 31, 2011 (Def Exh F [Pre-Pleading Memorandum]). Kaplan diagnosed defendant as suffering from Major Depressive Disorder, moderate, Posttraumatic Stress Disorder, moderate and Polysubstance Dependence, in Sustained Full Remission (id. p 5). Kaplan opined that Current theories regarding childhood sexual abuse suggest that abusers are sexually aroused by their target or are seeking emotional comfort and intimacy from children. Distorted sexuality may occur when an abuser had early experiences with sex, typically by having been the victim of sexual abuse himself during childhood. Abusers who are depressed or under stress may seek comfort they perceive to be unavailable through normal means. Abusers may have moral objections to such behavior but can overcome their inhibitions by altering their internal state, via intoxication. These issues are present in Mr. G.’s case. If the allegations are true, it would appear that Mr. G.’s childhood experiences led to distorted sexual interests. His ongoing struggles with depression and anxiety may have helped him to seek comfort and intimacy. As Mr. G. was an active substance abuser at the time, his inhibitions may have been lowered as a result of his intoxication. If it is determined that Mr. G. committed these crimes, I recommend that he receive intensive sexual offender treatment. In any case, he would benefit from treatment for depression, Posttraumatic Stress Disorder, and substance abuse. (Id. pp 6-7.) While defendant has completed both ASAT and ART, the court cannot accept his claim (H 30-33) that the rehabilitative programs he attended while in prison, which all employ cognitive behavior therapy, provided the kind of intensive sex offender treatment or treatment for major depressive disorder and PTSD that Kaplan recommended. DOCCS describes ASAT as”[i]ntensive, structured substance abuse treatment employing elements of the Therapeutic Community model,” and “complements specialized programs to minimally include…Sex Offender Counseling & Treatment Program (SOCTP)” (emphasis supplied) (https://doccs.ny.gov/alcohol-and-substance-abuse-treatment-asat). Defendant was diagnosed in ASAT with mild alcohol use disorder, mild cocaine use disorder and mild marijuana use disorder (Def Exh C [update dated 6/3/16]). His ASAT discharge status, dated July 25, 2016,⁷ indicates that he achieved his goals as to alcohol and substance abuse, cognitive distortions ⁸ and overall goals, but the category “Emotional and/or Traumas” is marked as “Not Applicable” (Def Exh C [discharge status dated 7/25/16]).⁹ DOCCS describes ART as a “cognitive behavioral intervention program designed to assist individuals in improving social skills, moral reasoning, coping with and reducing aggressive behavior through the use of self regulating exercises and mindfulness” (https://doccs.ny.gov/aggression-replacement-training-art-program). Defendant submitted only one document regarding his progress in ART, entitled “Final report of Program Progress.” It states that between November 21, 2016 and January 20, 2017, his homework was satisfactory (Def Exh B). It is commendable that defendant has pursued vocational training, including learning sign language and training to become an interpreter for hearing-impaired inmates, and that he received good evaluations from his instructors and supervisors (Def Ltr p 3). The court also accepts defendant’s assertion that being able to find employment will help him avoid recidivism in the future. But none of these accomplishments establishes at this stage that he is a low risk, rather than a moderate risk, to sexually reoffend once he is released into the community. For these reasons, I find that defendant’s successful completion of ASAT and ART while in prison, even combined with an exemplary disciplinary record and vocational training, are not mitigating factors for which a downward departure is warranted. Still less persuasive is defendant’s reliance on statistical studies finding that recidivism rates decline with advancing age (Def Ltr pp 8-9). Defendant committed the crimes for which he pled guilty here between 1998 and 2003 (see Indictment No. 4335-2010), when he was between the ages of 34 and 41 (see Pre-Sentence Investigation Face Sheet). Defendant continued to abuse the same victim between in late 2004, when he was 42 (see Case Summary p 1). Even if sexual recidivism declines “particularly once [offenders] attain the age of 60″ (Def Ltr p 8), defendant is not yet 60, and studies alone, in the absence of evidence about defendant himself, do not warrant a downward departure, People v. Shelton, 126 AD3d 959, 959-60 (2d Dept 2015) (where defendant, who was 60 years old at the time of the SORA hearing, made several arguments in favor of downward departure, the most significant of which was “citation of studies showing that a sex offender’s risk of recidivism drops significantly with increased age,” SORA court did not improvidently exercise its discretion in concluding that presumptive risk level did not overassess danger presented by defendant and risk of reoffense); see also People v. McClendon, 175 AD3d 1329, 1331 (2d Dept 2019) (“defendant failed to demonstrate that his age at the time of the SORA hearing, 60 years old, constituted an appropriate mitigating factor and minimized his risk of reoffense, particularly since the rape of the victim took place when the defendant was 47 years old”), lv denied, 34 NY3d 910 (2020); People v. Munoz, 155 AD3d 1068, 1069 (2d Dept 2017) (defendant failed to demonstrate that his age at time of SORA hearing, 57 years old, would in and of itself reduce risk of reoffending), lv denied, 30 NY3d 912 (2018). Conclusion Considering the totality of the circumstances, I conclude for all of these reasons that defendant has not demonstrated by a preponderance of the evidence that his Presumptive Risk Level overstates his dangerousness or his risk to sexually reoffend. The motion to depart downwardly from Risk Level Two is therefore denied. I hold that defendant is a Sexually Violent Offender and that his Risk Level is Two. The foregoing constitutes the decision and order of this court. Dated: December 1, 2020