DECISION AFTER SORA HEARING Defendant stands convicted after pleading guilty to Attempted Robbery in the First Degree (PL §110/160.15), Criminal Sexual Act in the First Degree (PL §130.50) and Sexual Abuse in the First Degree (PL §130.65) on September 22, 2011. On the same day, in a separate matter (Indictment 1302/2011), the Defendant was convicted by guilty plea of Tampering with a Witness in the Third Degree (PL §215.11) and Criminal Contempt in the First Degree (PL §215.51). Defendant was sentenced on the above-captioned indictment to 10 years of incarceration to be followed by 10 years of post-release supervision. On June 9, 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: the Risk Assessment Instrument and Case Summary prepared by the Board dated 04/08/20; handwritten letter to the Court by the Defendant dated 04/14/20; Criminal History by the New York State Division of Criminal Justice Services; handwritten letter to the victim by the Defendant written under the name “Jessica Shackelford;” Inmate Disciplinary History dated 05/28/20; waiver of rights and handwritten statement to the police dated 07/07/10; plea minutes dated 09/22/11; Pre-Sentence Investigation Report dated 10/18/11; witness statement to the police by “E.V.” dated 07/07/10; the Risk Assessment Instrument prepared by the People dated 06/01/20; and the oral arguments of both the People and defense counsel. RISK ASSESSMENT FACTORS: The Court refers to the Risk Assessment Instrument and Case Summary prepared by the Board dated 04/08/20. That document assessed the Defendant thirty (30) points under risk factor 1 for use of forcible compulsion armed with a dangerous instrument, twenty-five (25) points under risk factor 2 for 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, fifteen (15) points under risk factor 9 for the Defendant having a prior non-violent felony history, ten (10) points under risk factor 10 for the Defendant’s prior felony being less than three years before the instant offense, fifteen (15) points under risk factor 12 for the Defendant’s failure to accept responsibility and refusal or expulsion from sex offender treatment. The Board’s instrument results in a total of one-hundred and twenty-five (125) points which would require a Level Three (high risk to re-offend) designation. The Court refers to the Risk Assessment Instrument prepared by the People dated 06/01/20. That document diverges from the Board’s recommendation in two ways: the People suggest only ten (10) points under risk factor 1, indicating that the Defendant was not armed with a dangerous instrument, and the People suggest ten (10) points under risk factor 13 for the Defendant’s allegedly unsatisfactory conduct while confined. The People’s instrument results in a total of one-hundred and fifteen (115) points which would require a Level Three (high risk to re-offend) designation. The Defendant concurred with the People’s reduced point value of ten (10) points under risk factor 1, indicating that the Defendant was not armed with a dangerous instrument. The Defendant disputed the Board’s and People’s assessment of fifteen (15) points under risk factor 12 for the Defendant’s failure to accept responsibility and refusal or expulsion from sex offender treatment, arguing that Defendant completed twelve (12) months of treatment and the Defendant’s failure to complete the sex offender treatment program was, partly, due to him being moved around the correctional facility. The defense further argued that the Defendant fully accepts responsibility for his actions. The Defendant disputed the People’s assessment of ten (10) points under risk factor 13 for the Defendant’s allegedly unsatisfactory conduct while confined, arguing that while the Defendant had several tier violations, a person’s conduct is relative, and the Board was correct in its conclusion that overall, the Defendant’s conduct should not be considered unsatisfactory. The Defendant’s accounting of the risk assessment factors results in a total of ninety (90) points which would require a Level Two (moderate 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’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 as follows: Under risk factor 1, “Use of Violence,” the Defendant is properly assessed ten (10) points for use of forcible compulsion. This is established by the Defendant’s plea minutes, in which the sworn Defendant answered yes to the question “at that date, time and location, did you engage in oral sexual conduct with another person by forcible compulsion?” The Defendant further answered yes to the question “specifically, did you point what appeared to be a pistol at a person with the initials EV?” This is further established by the victim’s written statement in which “EV” stated that the Defendant pointed a gun at her, forcing her to perform oral sex upon him. The Board’s proposed assessment of 30 points for being armed with a dangerous instrument would be error. The case summary indicates that the gun recovered in this case was a BB gun and for a BB gun to be classified as a dangerous instrument under Penal Law §10.00 (13), it must be shown that the BB gun was loaded and operable or that it was used as a bludgeoning object. See People v. Swain, 46 A.D.3d 1157, 1158 (3rd Dept, 2007). In this case there is not even an allegation that the BB gun was either loaded and operable nor used as a bludgeoning device during the commission of the offense. Under risk factor 2, “Sexual Contact with Victim,” the Defendant is properly assessed twenty-five (25) points for deviate intercourse. This is established by the Defendant’s plea minutes, in which the sworn Defendant answered yes to the question “at that date, time and location, did you engage in oral sexual conduct with another person by forcible compulsion?” This is further established by the Defendant’s waiver and handwritten statement dated 07/07/10 in which he wrote “she gave me oral sex.” This is further established by the written statement of the victim which stated that the Defendant pointed a gun at her, forcing her to perform oral sex upon him. 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 victim’s written statement in which “EV” stated that she was working as a hotel housekeeper cleaning a room at the time of the incident when the Defendant walked into the room, locked her in the hotel room, and victimized her. 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 PSI and plea minutes in which the Defendant gave his date of birth as “August 2, 1991.” The plea minutes, PSI, and victim’s written statement all confirm that the instant offense took place on July 7, 2010. Therefore, 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 fifteen (15) points for the Defendant having a prior non-violent felony history. This is established by the PSI, which indicates that on 04/12/10 under indictment #675/2010, the Defendant was adjudicated a youthful offender of Attempted Robbery in the Third Degree and was sentenced to 6 months of jail and 5 years of probation. This is further established by the Defendant’s handwritten letter to the Court dated 04/14/20, in which the Defendant wrote “I feel that the recommendation of the Board of Examiners is harsh due to the fact that I have accepted full responsibility for my crimes even though I refused to take the S.O.P program and that since I got youthful offender for the Robbery 3 I should not be pointed in these two categories [Emphasis added].” The Defendant’s written statement further confirms this adjudication but inaccurately reflects the disposition when he wrote “I received a youthful offender for Robbery 3 when I was a minor and I pled guilty to disorderly conduct [Emphasis added].” Youthful Offender adjudications are properly considered for the criminal history risk factor. See People v. Francis, 30 N.Y.3d 737 (2018) (“in concluding that an earlier YO adjudication may be used in assessing points against defendant, the Board has not acted in violation of the CPL.”) Under risk factor 10, “Recency of Prior Felony or Sex Crime,” the Defendant is properly assessed ten (10) points for the Defendant’s prior felony being less than three years before the instant offense. This is established by the PSI, which indicates that on 04/12/10 under indictment #675/2010, the Defendant was adjudicated a youthful offender of Attempted Robbery in the Third Degree. The plea minutes, PSI, and victim’s written statement all confirm that the instant offense took place on July 7, 2010. This is well within the three-year span of risk factor 10. In fact, the instant offense took place only 86 days after the prior adjudication for Attempted Robbery in the Third Degree. Under risk factor 12, “Acceptance of Responsibility,” the Defendant is properly assessed fifteen (15) points for the Defendant’s failure to accept responsibility and refusal or expulsion from sex offender treatment. This is established by the Defendant’s handwritten letter to the Court dated 04/14/20, in which the Defendant wrote “I feel that the recommendation of the Board of Examiners is harsh due to the fact that I have accepted full responsibility for my crimes even though I refused to take the S.O.P program and that since I got youthful offender for the Robbery 3 I should not be pointed in these two categories [Emphasis added].” Further in that letter, the Defendant wrote “Even though I did refuse the program I have learned a lot from my time in the program [Emphasis added].” A “refusal to participate in a sex offender treatment program automatically demonstrates an unwillingness to accept responsibility for the crime.” See People v. Rosario, 164 A.D. 3d 625 (2nd Dept, 2018); See also People v. Cosby, 154 A.D.3d 789 (2nd Dept, 2017), People v. Garcia, 47 A.D.3d 428, 430 (1st Dept, 2008), People v. Donhauser, 37 A.D.3d 1053 (4th Dept, 2007). The Defendant’s lack of acceptance of responsibility is further established by the PSI which indicates that “the Defendant stated that police insisted that he had a silver pistol which he said was found but the defendant insisted that he never had any weapon [Emphasis added].” Furthermore, the PSI indicates “the Defendant again said that he did not rob her and that there was no gun, and insisted that E.V. made up the story because Shawn did not give her all the marijuana that he was supposed to [Emphasis added].” In the PSI, the Defendant insisted that the victim agreed to have oral sex with him for marijuana. A claim of innocence during a PSI is inconsistent with acceptance of responsibility. See People v. Lewis, 37 A.D.3d 689, 690 (2nd Dept, 2007) (“Where, as here, the Defendant continues to assert his innocence during the pre-sentence investigation, his allocution to the offense at the time of the plea does not, by itself, establish his acceptance of responsibility”). Under risk factor 13, “Conduct While Confined,” the Court finds that zero (0) points are warranted for the Defendant’s allegedly unsatisfactory conduct while confined. While the People have included the Defendant’s disciplinary record showing a variety of violations while incarcerated, this Court notes that the Board considered Defendant’s disciplinary record to be acceptable, and did not assess any points for this risk factor. While this Court is not bound by the Board’s recommendation on this factor (See Matter of VanDover v. Czajka, 276 AD2d 945, 946 [3rd Dept, 2000]), this Court notes that the Board has seen and evaluated tens of thousands of prison disciplinary records from all over the state, and has based their assessment of acceptable behavior on this vast experience. The People have failed to establish by clear and convincing evidence why this Court should depart from the Board’s assessment of zero points on risk factor 13. As more fully described above, the Court’s assessment of points based upon the risk assessment factors totals one-hundred and five (105) points which would require a Level Two (moderate risk to re-offend) presumptive risk level. DEPARTURES: Neither the Board’s nor People’s instruments requested any overrides or departures. However, at the hearing, the People raised as basis for an upward departure the following aggravating factor: the Defendant’s act of writing a threatening letter to the victim of his sex offense, demanding that the victim recant, or leave the jurisdiction, on pain of deportation or the death of the victim and her family. The Defendant made these threats in violation of active orders of protection. As a result he was prosecuted for and convicted of Criminal Contempt in the First Degree and two counts of Tampering with a Witness in the Third Degree under indictment #1302/2011. The Defendant plead guilty to these crimes and allocuted to their commission. This Court offered to adjourn this matter to allow the Defendant time to rebut this basis for upward departure. The Defendant elected not to seek an adjournment but, rather, expressly waived the timing defect and opposed it on its merits. 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, 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 Court finds that the People’s sought-basis is an aggravating factor in that an offender’s act of writing to a sexual offense victim and threatening to either deport or kill the victim and the victim’s family establish a higher danger to the community and is not adequately taken into account by the Guidelines. There is no risk factor that 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 Defendant’s handwritten letter to the written under the name “Jessica Shackelford” along with the plea minutes to indictment #1302/2011, and the PSI. In the handwritten letter to the victim, the Defendant wrote: “I understand that on July 7, 2010 you were at your job working when you said Mr. Gregory Shackelford tried to rob you and made you perform oral sex on him. I also understand that you were born in El Salvador. Mr. Gregory Shackelford is going to be taking this case to trial. With that being said you have two choices you can either drop the charges that you have put on him and not get deported, or you can move far away from Brentwood and forget that this ever happened. You have until November 30th, 2010 to drop the charges or you will get deported back to El Salvador forever. My brother Mr. Gregory Shackelford never did anything to you and you know it. If you do not drop the charges I will hunt you and your family down and kill all of you myself. I am his older sister and I live in Brentwood. I know where you live [address redacted]. So it won’t be hard for me to find you at all. My name is Jessica Shackelford [Emphasis added].” Though the letter is purportedly signed by “Jessica Shackelford,” the PSI further establishes that the Defendant wrote the letter and did so to deter the victim from testifying, when it indicates: “The defendant acknowledged sending a letter and telling E.V. to drop the charges. The defendant said that he did not do anything wrong to be charged with a crime, and in his letter, he wrote that he would hurt her family, full knowing that there was an order of protection. The defendant said that he wrote the letter as he was ‘upset’ as he had not done anything wrong and she had trumped up false charges against him.” The plea minutes to Indictment #1302/2011 further establish and confirm the Defendant’s malicious intent in causing the letter to be sent to the victim. The sworn Defendant confirmed that 1) he knowingly violated the order of protection when he sent the letter, 2) the purpose of sending the letter was to cause fear of physical injury to the victim, 3) he knew the victim was about to be called as a witness in a criminal proceeding, and he wrongfully attempted to compel the victim to absent herself from the proceeding, 4) he attempted to compel the victim not to cooperate with the police and to not show up at the pending trial, 5) he did so with the intent to cause the victim to swear falsely, and 6) he attempted to compel the victim to avoid testifying by threats of physical violence or physical injury. 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 does 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 basis for upward departure satisfies the third and final step of the analysis. The People’s application for an upward departure is granted. At the hearing, the Defendant raised as basis for a downward departure the following mitigating factor: the Defendant is engaged to be married, and intends on living in Syracuse, NY with his fiancé upon his release. Addressing the three-step process as regards the application for downward departure by the Defendant, 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 Defendant’s proffered-basis in this case simply does not rise to the level of a mitigating factor. While this basis is not already considered by the Board and the People in their respective Risk Assessment Instruments, there is no indication that the basis tends to establish a lower likelihood of reoffense or danger to the community, such as would warrant a downward departure. The proffered-basis therefore fails at step-one. However, even assuming arguendo, the Defendant’s mitigating factor were to survive step-one, this Court finds that the Defendant failed to establish, by a preponderance of the evidence, the existence of facts in support of the proffered basis. No affidavit, testimony, or paperwork was provided from the alleged fiancé, nor was any affidavit, paperwork or testimony submitted to corroborate an intent to move to Syracuse, NY. Finally, even assuming arguendo, the Defendant’s mitigating factor were to survive step-one and step-two of the analysis, this Court finds that weighing the totality of the circumstances would not warrant a departure to avoid an over-assessment of the Defendant’s dangerousness and risk of sexual recidivism. The application for a downward departure fails each of the analytical steps. The Defendant’s application for a 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 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: June 12, 2020
