DECISION AND ORDER PURSUANT TO CORRECTION LAW §168-K(2) This matter has come before the court, for a determination pursuant to Correction Law §168-k(2). Defendant was present with counsel. On September 6, 2022, the defendant was convicted by plea of guilty to Persistent Sexual Abuse, in violation of Penal Law §130.53, before this Court. Defendant was sentenced on September 26, 2022, to two years imprisonment, and three years post-release supervision, along with a ten-year order of protection. Defendant will also register as a sex offender, pursuant to the guidelines set forth in the Sex Offender Registration Act (SORA), N.Y. Corrections Law §168. The Court has received recommendations as to a Risk Level from the Board of Examiners of Sex Offenders (hereinafter “the Board”), the People and defense counsel. The Board and the People have filed Risk Assessment Instruments (hereinafter “RAI”), and defendant and his counsel have been provided with copies thereof. The Board believes that defendant is a Presumptive Risk Level 2 and assesses defendant with 100 points as follows: 5 points for sexual contact with victim-contact over clothing (Risk Factor #2); 20 points for age of victim-11 through 16 (Risk Factor #5); 20 points for relationship with victim-stranger (Risk Factor #7); 30 points for number and nature of prior crimes-prior violent felony, sex crime, or endangering the welfare of a child (Risk Factor #9); 10 points for recency of prior felony or sex crime-less than 3 years (Risk Factor #10); and 15 points for acceptance of responsibility-not accepted responsibility, refused or expelled from treatment (Risk Factor #12), for a total of 100 points. However, the Board recommends an upward departure to a Level 3 Risk Level as, due to the timing of events, the RAI is not able to capture the totality of his offense conduct. The Board further states that defendant has repeatedly demonstrated the inability to manage his sexual urges and his offense conduct includes both underaged and adult victims. The Board seeks designations of Sexually Violent Offender and Predicate Sex Offender. The People agree with the points assessed by the Board as outlined above however, the People assess the defendant 15 points for history of drug or alcohol abuse (Risk Factor #11), and no points under Risk Factor 10. The People explain that they did not assess points under Risk Factor #10 in their RAI because defendant was convicted of his current conduct more than three years after his 2019 conviction. The People assess a total of 105 points and believe defendant is a Presumptive Risk Level 2; however, they also seek an upward departure to a Risk Level 3, given defendant’s inability to control his sexual urges to both underage and adult strangers in public settings, and the frequency at which defendant is arrested for failing to control these urges, as well as defendant’s refusal to participate in sex offender treatment. The People also seek designations of Sexually Violent Offender and Predicate Sex Offender. Defendant argues that: i.) the Court should dismiss this proceeding under the principles of claim preclusion, as well as the SORA Guidelines, or in the alternative; ii.) the Court should assess a total of 50 points, not 105, against defendant and iii.) the Court should a.) grant defendant a downward departure to Level 1, even if the Court treats defendant as a Level 2 registrant, and b.) deny any application for an upward departure to a Level 2 or 3. Defendant does not contest the designations of Sexually Violent Offender and Predicate Sex Offender. This Court has reviewed submissions from the parties and heard oral arguments on this matter. I. Findings of Fact On March 20, 2022, at approximately 12:45 p.m., inside of St. Michael’s Church in Staten Island, New York, defendant touched a minor’s vagina over her clothes. This conduct occurred while the thirteen-year-old victim was kneeling during Sunday mass with her family. As a result of these actions defendant was indicted in Richmond County for Persistent Sexual Abuse and related offenses. The Court has reviewed the grand jury minutes in relation to this case, including testimony from the thirteen-year-old victim. Defendant pled guilty to Persistent Sexual Abuse in Richmond County on September 6, 2022, and was sentenced on September 26, 2022 to two years imprisonment and three years post-release supervision, with a 10 year order of protection. One day after the above incident, on March 21, 2022, at approximately 9:30 a.m., while in New York County, defendant grabbed another victim’s buttocks while she was waiting for the train. He pled guilty to Persistent Sexual Abuse in New York County on October 3, 2022. Defendant was sentenced to two years prison and three years post release supervision on each indictment, to run concurrently. A review of defendant’s criminal history shows that, in addition to the two convictions mentioned above, he was also convicted of Forcible Touching, a class A misdemeanor, in Richmond County on April 26, 2018. Defendant was sentenced to two years probation on June 14, 2018. On June 5, 2019, defendant was convicted of Sexual Abuse in the 3rd Degree in New York County. He was sentenced to time served that same day. II. Claim Preclusion and the SORA Guidelines On November 17, 2023, a SORA hearing was held in New York County Criminal Court with respect to defendant’s 2019 Sex Abuse conviction. At that proceeding, defendant was adjudicated a Level 1 registrant. Counsel now argues that this proceeding should be dismissed as barred by claim preclusion and the SORA Risk Assessment Guidelines and Commentary (hereinafter “Guidelines”). The basis of counsel’s argument is that this is a case where each and every one of the point assessments that the Board and the prosecution now seek could have been sought at the November 2023 SORA hearing, had they followed the Guidelines and scored all of defendant’s registrable offenses under a single RAI. As defendant points out, the Guidelines clearly contemplate scoring, under a single RAI, different convictions involving different offense conduct with different victims committed on different occasions. In a case involving multiple convictions, “the Board or Court should look to the most serious wrongdoing in each category.” Guidelines, at 6. Factors that add to defendant’s risk level should be scored in one RAI, even if they did not occur together in any one criminal incident. The Guidelines further advise that the “Current Offenses section should be completed on the basis of all crimes that were part of the instant disposition. For example, if the offender pleaded guilty to two indictments in two different counties, both indictments should be considered in scoring the section.” Id. at 5-6. Undoubtedly, a “valid final judgment bars future actions between the same parties on the “same cause of action.” People v. Cook, 128 A.D.3d 928, 932 [2d Dept 2015]. Defendant urges the Court to look to the doctrine of res judicata, which provides that a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. “The rule applies not only to claims actually litigated, but also to claims that could have been raised in the prior litigation.” In re Hunter, 4 N.Y.3d 260, 269 [Ct. App. 2005]. Counsel seeks a dismissal of this proceeding, since the Board and the prosecution have asked the Court to adjudicate defendant a Level 3 registrant based entirely on facts that should have been considered by the New York County Criminal Court when they adjudicated defendant a Level 1 registrant. Counsel relies on the Court of Appeals decision People v. Cook, 29 N.Y.3d 114 [2017] which held that where a single RAI addressing all relevant conduct is prepared, the goal of assessing the risk posed by the offender is fulfilled by a single SORA adjudication. Id. at 119. The Court went on to state that to permit multiple risk level determinations based on conduct included in a single RAI would result in redundant proceedings and constitute a waste of judicial resources. Id. The Court explained that once the Division of Criminal Justice Services was notified of the Richmond County SORA court’s determination, “it had the information it needed to serve SORA’s goal of protecting the public from this particular sex offender.” Id. However, more recent decisions have rejected claim preclusion arguments in related circumstances. Courts have recently held that where one county makes a SORA adjudication, based upon one RAI prepared only in connection with that conviction and the facts underlying that conviction, and a separate county makes a SORA adjudication based upon an RAI prepared in connection with only that county’s case, the SORA proceeding is not duplicative and will not be barred by claim preclusion. See People v. Sanchez, 186 A.D.3d 880, 881-882 [2d Dept. 2020]; People v. Fuentes 177 A.D.3d 788, 789 [2d Dept. 2019]; People v. Horoho, 2024 N.Y. App Div. LEXIS 1019 [3rd Dept. 2024]; People v. Hirji, 170 A.D.3d 412 [1st Dept. 2019]. A review of the RAI, case summary, and minutes from the November 2023 SORA hearing show that the RAI utilized in that case did not assess any points to defendant in connection with his subsequent Richmond County and New York County cases, although the Board and the prosecutor were aware of the facts and circumstances surrounding them. The Board mentions these cases in their case summary yet fails to assess any points based on them. At the 2023 SORA hearing, the People and the Court acknowledged that these additional points could have been assessed; however, the People and the Court declined to assess points as they would pertain to these cases, citing lack of notice to defense. Since the New York County Criminal Court RAI and the RAI before this Court today separately pertain to each individual case, this SORA hearing is not a duplicative proceeding unauthorized by statute. In enacting SORA, the legislature found that “the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior” made “protection of the public from these offenders…of paramount concern or interest to government.” Cook at 118, citing L 1995, ch192, §1. To find that this proceeding is barred by claim preclusion and the Guidelines would frustrate the ultimate goals of the SORA legislation, Unlike in Cook, here, the Division of Criminal Justice Services does not have the information it needs to serve SORA’s goal of protecting the public from this particular sex offender, based on the New York County Criminal Court determination alone. III. Risk Factors The Court agrees with the Board and the People’s assessment of the following points: 5 points for sexual contact with victim-contact over clothing (Risk Factor #2); 20 points for age of victim-11 through 16 (Risk Factor #5); and 20 points for relationship with victim-stranger (Risk Factor #7). Defendant does not contest the assignment of 45 points under these factors. With respect to Risk Factor #10, the recency of prior sex crime, the Board assesses 10 points. The Board states in their case summary that these points were assessed because defendant committed the instant offense less than three years after his Sex Abuse conviction. However, the People specifically state that they did not assess any points under Risk Factor #10 because defendant’s prior Sex Abuse conviction, from June of 2019, was more than three years from his September 2022 conviction here. The Board was correct to assess 10 points, as the Guidelines describe Factor 10 as applying when “the offender has a prior conviction or adjudication for a felony or sex crime that occurred less than three years before the instant offense” (see Guidelines overview) until the date defendant commits the instant offense (see Guidelines, at 14). The time is triggered by a “conviction” (see People v. Shelby, 57 Misc.3d 561, 564 [Rich. Co. Sup. Ct. 2017] and is measured to the commission of the instant offense. Here, defendant was convicted in June of 2019, and committed the instant offense in March of 2022, within the three-year period. Defendant does not address Risk Factor #10. Defendant urges the Court to assess 5, not 30, points against defendant under Risk Factor #9, because Rick Factor #9 appears within the “Criminal History” section of the RAI, rather than the “Current Offense” section. According to the Guidelines, the “Current Offenses” section of the RAI should be completed on the basis of all the crimes that were part of the instant disposition. However, this Court has already explained that this RAI is separate and apart from the RAI filed in connection with the November 2023 SORA determination. Thus, this Court finds it is appropriate for 30 points to be assessed based on defendant’s prior misdemeanor sex crime. Defendant next argues that the Court should not assess 15 points against defendant under Risk Factor #11, because the record does not establish by clear and convincing evidence that defendant had a history of substance abuse or that he abused marijuana at the time of the offense. This Court agrees. Although the Board reported that defendant stated he was prescribed medical marijuana and used it daily, a screening completed at DOCCS intake scored him in the “No Problem” range on the Michigan Alcohol and Screening Test and “No Usage” range on the Simple Screening Instrument, the Board declined to assess points under this category. The People assessed 15 points by merely stating that when interviewed by probation officials, defendant admitted to being under the influence of marijuana at the time of the offense and refused to participate in substance abuse treatment. They have failed to show, by clear and convincing evidence, that defendant was abusing drugs or alcohol. This category only applies in instances where the offender had a history of alcohol or drug abuse or where the offender consumed sufficient quantities of these substances such that the offender can be shown to have abused alcohol or drugs. People v. Palmer, 20 N.Y.3d 373, 378 [Ct. App. 2013]. The Court will not assess any points to defendant under this category. Both the Board and the People assessed 15 points to defendant under Risk Factor #12, acceptance of responsibility. They do so, not because defendant failed to accept responsibility, but because defendant declined to participate in the Sex Offender Counseling and Treatment Program (SOCTP). Defendant argues that he accepted responsibility by pleading guilty. He also admitted his guilt during his presentence interview. Defendant further claims he admitted his guilt a third time at his DOCCS reception; however, points were assessed for his failure to participate in treatment. Although the Second Department suggests that a defendant’s refusal to participate in a sex offender treatment program by itself demonstrates an unwillingness to accept responsibility for the crime, (see People v. Braxton, 185 A.D.3d 739 [2d Dept. 2020]; People v. Padgett, 170 A.D.3d 1054 [2d Dept. 2019]) this Court finds that defendant’s refusal has nothing to do with a lack of willingness to accept responsibility. Rather, this Court has taken into consideration the affirmation submitted by prior defense counsel, Michael Cirigliano, as well as his previous requests that defendant be placed in protective custody. Mr. Cirigliano affirms that defendant was incarcerated while he represented him. During that time, defendant feared being labeled a sex offender by other incarcerated individuals. Mr. Cirigliano also affirms that defendant asked that he not send any material referring to his charges or the factual allegations against him, due to defendant’s fear of being labeled a sex offender by other incarcerated individuals. Defendant also sought to be placed in protective custody once he began serving his upstate prison sentence. For these reasons the Court does not believe defendant failed to accept responsibility, nor is the Court persuaded that his refusal to participate in a treatment program was based on anything less than fear for his own safety, and will not assess any points under Risk Factor #12 The Court assesses points as follows: 5 points for sexual contact with victim-contact over clothing (Risk Factor #2); 20 points for age of victim-11 through 16 (Risk Factor #5); and 20 points for relationship with victim-stranger (Risk Factor #7); 30 points for number and nature of prior crimes (Risk Factor #9); and 10 points for recency of prior felony or sex crime-less than three years (Risk Factor #10). This total of 85 points makes defendant a Presumptive Risk Level 2. IV. Downward Departure Defendant requests that the Court grant a downward departure to a Level 1 Sex Offender. “[T]he level suggested by the [risk assessment instrument] is merely presumptive and a SORA court possesses the discretion to impose a lower or higher risk level if it concludes that the factors in the RAI do not result in an appropriate designation” (People v. Ratcliff, 107 AD3d 476 [1st Dept 2013] Iv denied 22 NY3d 852 [2013]). Although the law may permit a departure, the Court still has discretion to refuse to depart or grant a departure (People v. Gillotti, 23 N.Y.3d 841 [Ct. App 2014]). A defendant seeking a downward departure has the initial burden of identifying the appropriate mitigating factors and establishing their existence by a preponderance of the evidence. People v. Worrell, 183 A.D.3d 602, 603 [2d Dept 2020], see also People v. Wyatt, 89 A.D.3d 112, 128 [2d Dept 2011]. Under Gillotti, the Court must first consider whether the offered mitigating circumstances are “of a kind not adequately taken into account by the guidelines” that reduce the likelihood of re-offense or danger to the community. Second, the Court must determine whether defendant has proven the existence of those circumstances by a preponderance of the evidence. Finally, if the Court finds that the last two prongs are met, it may grant downward departure 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” (Gillotti at 861). Here, this Court has considered the mitigating factors offered by defendant and is exercising its discretion to refuse to depart from the presumptive level. The mitigating factors identified by defendant include, in sum, an “individualized and comprehensive mental health discharge plan,” the support of a Legal Aid social worker, and support of his family. While this Court agrees that the defendant could benefit from the support referenced, we are reminded that in enacting SORA, the legislature found that “the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior” made “protection of the public from these offenders…of paramount concern or interest to government” (Cook at 118, citing L 1995, ch192, §1). The Court further notes that defendant has four criminal convictions, all involving sex offenses or forcible touching. Based upon defendant’s criminal history, a downward departure would not be appropriate and a designation as a Risk Level 2 would not result in an over-assessment of the defendant’s dangerousness and risk of sexual recidivism. V. Upward Departure The People’s motion for an upward departure is likewise denied. “Where the People seek an upward departure, they must demonstrate that there exists an aggravating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines.” People v. Trovato, 222 A.D.3d 673 [2d Dept. 2023], citing People v. Wilkerson, 214 A.D.3d 683, 684 [2d Dept. 2023]. The People must prove facts in support of the aggravating factor by clear and convincing evidence. Here, the Board and the People merely argue that an upward departure should be granted because of defendant’s inability to control his sexual urges to both underage and adult strangers in public settings, the frequency of his arrests, and his refusal to participate in sex offender treatment. The Court already addressed his refusal to participate in treatment at length, above, and is not persuaded by that branch of the People’s argument. This Court is of the opinion that the Guidelines fully accounted for defendant’s conduct. THEREFORE, it is hereby ORDERED, that defendant is designated a Risk Level 2; and it is further ORDERED, that defendant is designated a Sexually Violent Predicate Sex Offender. This shall constitute the Decision and Order of the Court. Dated: March 7, 2024
