ALBANY – One-time or occasional use of alcohol or drugs by a sex offender does not constitute a "history" of substance abuse for assessing the risk posed by the offender, the state Court of Appeals has ruled.

The court also decided on Feb. 12 that a sentencing judge is under no obligation to tell defendants prior to their plea allocutions that their conviction for a second felony offense would mean they have to serve time consecutively for any undischarged sentence from their first conviction.

The court handed down its rulings the day after Judge Jenny Rivera was confirmed by the state Senate (NYLJ, Feb. 13).

"This is a significant afternoon for the court," Chief Judge Jonathan Lippman (See Profile) said as six members gathered for oral arguments.

Rivera sat to the far right of the chief judge in a seat that is reserved for the court’s second-most-junior member. The seat to the far left of Lippman will be occupied in March when the Senate confirms Governor Andrew Cuomo’s nominee to replace the late Judge Theodore Jones Jr. (NYLJ, Nov. 7).

"We’re delighted to welcome her and delighted to have her on the court," Lippman said of Rivera. "She is ready to go and so are we."

The first attorney to appear before the court in the initial case on the Feb. 12 calendar, White v. Farrell, 43, was John Cirando. Cirando, of D.J. & J.A. Cirando in Syracuse, is a member of the Commission on Judicial Nomination, which included Rivera on a list of names it forwarded to Cuomo to fill the vacancy created by the retirement of Carmen Beauchamp Ciparick (NYLJ, Dec. 1).

Cirando said that the last time he saw Rivera was at her interview for the Court of Appeals. He noted that he had been one of those asking the questions that day.

"The tables are turned," Cirando said Tuesday.

"I’ll be just as kind," Rivera responded.

The determination of criteria for the Sex Offender Registry came in two cases the court considered in one ruling, People v. Palmer, 14, and People v. Long, 15. In each instance, the court reversed Appellate Division rulings that upheld the assessment of 15 points against each offender for having a "history of drug or alcohol abuse."

Both Michael Palmer and Cornell Long challenged their assessments for having chronic alcohol problems as being contrary to the facts in their individual circumstances.

Palmer argued that he acknowledged only having used alcohol prior to the first time he sexually molested his underage victim and denied drinking during the other two years he abused the girl, who was between the ages of 11 and 13.

Long said he had consumed a "few" beers about 90 minutes prior to forcing his girlfriend to have oral and anal sex with him.

Both men were assessed 80 points overall and classified as Level 2 offenders under the sex offender registry. They both argued that they should be classified in the lower-risk Level 3 category, where offenders’ reporting requirements to local authorities and public notification of their status are less stringent than in Level 2.

Level 2 offenders score between 70 and 110 points in the 15 risk categories for rating sex offenders. Level 3 offenders score below 70.

The Court of Appeals said the points assessed for the defendants’ "history" of drug or alcohol abuse was in error.

Lippman wrote that alcohol undoubtedly "plays a pernicious role in various domestic violence disputes and sexual assaults." But he said the assessment system developed by the Sex Offender Registry’s board advises that neither "occasional social drinking" nor "periodic, moderate drinking" qualifies as the risk factor "abuse."

"A sex offender who abuses alcohol prior to committing a sex offense represents a greater risk to the community and must be more carefully monitored," Lippman wrote. "Only alcohol abusers should be subject to stricter scrutiny and assessed a higher point level under the SORA Guidelines, as opposed to occasional, moderate social drinkers."

In a footnote, Lippman said the court’s conclusion is counter to recent Appellate Division findings on the drug and alcohol abuse risk factor in People v. Sterling, 71 AD3d 654 (2010), and People v. Britt, 66 AD3d 853 (2009). "These cases should not be followed," Lippman cautioned.

Judges Susan Phillips Read (See Profile), Victoria Graffeo (See Profile), Robert Smith (See Profile) and Eugene Pigott Jr (See Profile). joined in Lippman’s ruling.

Anna Pervukhin of Appellate Advocates represented Palmer and Assistant Brooklyn District Attorney Adam Koelsch argued for the prosecution.

Vincent Gugino of Buffalo argued for Long. Assistant District Attorney David Heraty represented the Erie County prosecutor’s office.

A Collateral Consequence

In another ruling Feb. 12, the court split 4-1 over whether judges have a responsibility to inform defendants that if they plead guilty to their second felony offense, they must serve any undischarged sentence remaining from their first conviction consecutively to the prison term they receive for their second conviction under state Penal Law §70.25(2-a).

The majority held in a Graffeo decision in People v. Belliard, 5, that the additional term of incarceration is a collateral consequence of the defendant’s allocution to a second felony, not a direct consequence.

Graffeo noted that the Court of Appeals previously held in People ex rel. Gill v. Greene, 12 NY3d 1 (2009), that nothing in state statute requires a trial court to characterize a term of imprisonment as "consecutive," and that in some cases judges may not even know that various laws require mandatory consecutive sentences in some instances.

In Gill, the court said that "when a court is required by statute to impose a consecutive sentence but does not address the matter, it is deemed to have imposed the consecutive sentence," Graffeo wrote.

Graffeo added that because it would be "unfeasible" for a court to advise a defendant of all the possible ramifications of a guilty plea, "our cases have drawn a distinction between the direct and collateral consequences of a plea."

"The significance of this distinction is that a trial court has a duty to advise a defendant about direct consequences, which are defined as having a ‘definite, immediate and largely automatic effect on defendant’s punishment,’" Graffeo wrote, quoting People v. Ford, 86 NY2d 397 (1995). "A court’s failure to comply with this mandate is not subject to harmless error review and requires reversal."

"In contrast," she added, "a court may, but need not, refer to collateral consequences during a plea allocution."

Read, Smith and Pigott agreed with Graffeo.

In dissent, Lippman wrote that he fails to see how the imposition of the undischarged portion of a sentence to run consecutively with the offender’s new term of imprisonment is not "punitive," "definitive," "immediate" and "automatic."

"It is the core object of every defendant entering a plea to minimize the punitive consequence of his or her conviction," Lippman said. "Where, as here, a plea entails incarceration beyond that expressly agreed to as part of the bargained for sentence, it cannot be ascertainably knowing, intelligent and voluntary unless that entailment is first disclosed by the court."

The case concerned Rafael Belliard’s attempt to vacate his guilty plea in Rochester to drug and weapons charges and an accompanying 12-year determinate sentence in prison. Belliard said he did not know that by pleading guilty, he would also face an undischarged term of five years of post-release supervision he received in connection with an earlier drug conviction.

Tuesday’s ruling affirmed a decision by a Fourth Department panel upholding Belliard’s conviction in People v. Belliard, 89 AD3d 1443 (2011).

David Juergens of the Monroe County Public Defender’s office represented Belliard. Assistant Monroe County District Attorney Kelly Wolford argued for the prosecution.

The court Tuesday also ruled that an upstate school district has to abide by the terms of its contract with its bus drivers and cannot fire a driver who tested positive for marijuana. An arbitrator had rejected the attempt to fire the driver as too severe and, in essence, imposed a six-month suspension without pay.

In an unsigned ruling in Matter of the Arbitration Between Shenendehowa Central School District Board of Education and Civil Service Employees Association, 8, the court ruled 5-0 that it has previously recognized only three narrow grounds for vacating an arbitrator’s award, and that the Shenendehowa case meets none of the exceptions. The three grounds are that the decision violates public policy, is irrational or "clearly exceeds a specifically enumerated limitation on the arbitrator’s power."

The ruling affirmed a finding by a Third Department panel (NYLJ, Dec. 6, 2011).

Beth Bourassa of Whiteman, Osterman & Hanna in Albany represented the school district and Daren Rylewicz of Albany argued for the CSEA and the disciplined bus driver, Cynthia DiDomenicantonio.

 

Rivera sat to the far right of the chief judge in a seat that is reserved for the court’s second-most-junior member. The seat to the far left of Lippman will be occupied in March when the Senate confirms Governor Andrew Cuomo’s nominee to replace the late Judge Theodore Jones Jr. (NYLJ, Nov. 7, 2012).