This matter was forwarded to this court for a judicial determination of defendant’s duration of registration and level of notification pursuant to the Sex Offender Registration Act (hereinafter “SORA”) (Correction Law §168-n). On July 23, 2021, this court conducted a SORA Risk Assessment Level hearing. FACTUAL AND LEGAL BACKGROUND The defendant’s SORA registration requirement arises from an October 22, 2009 conviction, upon his guilty plea, for Kidnapping in the Second Degree (Penal Law §135.20). This plea was in satisfaction of an indictment charging him with two counts of second-degree kidnapping, five counts of Criminal Sexual Act in the First Degree (Penal Law §130.50[1]), five counts of Sexual Abuse in the First Degree (Penal Law §130.65[1]), five counts of Criminal Sexual Act in the Second Degree (Penal Law §130.45[1]), two counts of Robbery in the Third Degree (Penal Law §160.05), two counts of Grand Larceny in the Fourth Degree (Penal Law §155.30[5]), and two counts of Endangering the Welfare of a Child (Penal Law §260.10[1]). For this conviction, the defendant received a sentence of fifteen years’ prison with five years’ post-release supervision. As outlined in the SORA Board’s case summary and underlying case documents, these charges stemmed from an incident that occurred on June 27, 2008. Around 7:00-8:30 pm, the defendant approached the two victims, a fourteen-year-old boy and girl, at the intersection of Flushing and Onderdonk Avenues in Queens County. The defendant was a stranger to both victims. He asked the victims to go with him to the park to help clean up graffiti with a larger group of children. They followed him for some time. The defendant then ordered the victims to go into a trailer. Once in the trailer, the defendant demanded that the victims remove their clothes. As he did so, he put his hand in his pants pocket multiple times, intimating he had some type of weapon, and said, “Don’t make me mad.” When the victims removed their clothing, the defendant forced them to subject each other to oral sexual contact. The defendant then performed oral sex on the female victim. After these sexual acts, the defendant ordered the victims not to tell anyone what he had done or he would find them and hurt their families. He then told the victims to stay in the trailer as he exited, taking their clothes with him. The defendant took the victims’ clothing to another trailer and took jewelry, Metrocards, and a cellphone from the clothing. The defendant later admitted to police that he was present in the trailer with the victims and had sexual contact with the female victim. He also admitted his guilt to the Department of Probation, explaining that he was under the influence of drugs at the time. He said he had decided to rob a house and kidnap the children with the goal of getting their parents’ attention. The defendant claimed that the crime had not gone as he had expected and he had let the victims go. During his inmate intake interview, he also admitted guilt to the Department of Corrections and Community Supervision, expressed remorse for his actions, and said that he was unemployed and stressed out at the time. This incident was not the defendant’s first contact with law enforcement. On September 26, 1991, he was convicted of Robbery in the Third Degree and received a split sentence of ninety days’ jail and five years’ probation. On March 18, 1992, he was resentenced to twenty months to five years’ incarceration. On November 4, 1992, he was convicted of Attempted Robbery in the Third Degree and received an indeterminate sentence of one and one-half to three years. On January 4, 1996, he was convicted of Attempted Robbery in the Third Degree and was sentenced to one and one-half to three years. On February 5, 2001, he was convicted of fifteen counts of Robbery in the First Degree, four counts of Criminal Possession of a Weapon in the Fourth degree, eleven counts of Kidnapping in the Second Degree, and fourteen counts of Robbery in the Second Degree. This case stemmed from an incident in which he and a codefendant threatened a thirteen-yearold boy, pushed him into a vehicle, and took money and clothing from him. No sexual contact was reported in connection with that offense. On March 13, 2001, the defendant was convicted of Robbery in the First Degree for a separate incident. For these two cases, he received concurrent eight-year sentences. Based upon the kidnapping conviction, he was required to register as a Level 1 sex offender in light of the victim’s age and his lack of parental relationship with him. As for the other relevant aspects of the defendant’s history, he admitted to daily cocaine use and scored in the “Minimal Need” range in a screening inventory for drug use upon his admission to DOCCS. While incarcerated, he completed an Alcohol and Substance Abuse Treatment (ASAT) program on April 26, 2020. Before then, however, he had received two serious Tier III disciplinary violations for drug use while incarcerated in 2015 and 2017. He had also previously completed the ASAT program on August 13, 2006. In March of this year, he began the Sex Offender Counseling and Treatment Program. Before then, he was waiting for an opening in the program’s availability. APPLICABLE CASE LAW The Court of Appeals stated in People v. Gillotti, 23 NY3d 841 (2014) that: Under SORA, the Board “shall develop guidelines and procedures to assess the risk of a repeat offense by [a] sex offender and the threat posed to the public safety” Correction Law §168-l[5]). The guidelines “shall be based upon,” among other things, “criminal history factors to be considered in determining risk, including” the “relationship between such sex offender and the victim”(Correction Law §§168-l [5]; 168-l [5][b]; 168-l [5][b][i] ). Based on the guidelines, the Board must make a “recommendation” regarding the offender’s risk level classification (Correction Law §168-1 [6]). “[A]pplying the guidelines,” a reviewing court at a SORA hearing must determine the offender’s risk level classification by either accepting or rejecting that recommendation in favor of a different risk level classification supported by the evidence presented at the hearing (Correction Law §§168-n[2]; [3]). RISK ASSESSMENT INSTRUMENT 1. Use of Violence The Board recommends that the defendant be assessed 30 points for this risk factor, because he was armed with a dangerous instrument during the offense. The defendant contends that this characterization is incorrect, as there was never any allegation that the defendant actually possessed or displayed any type of weapon or dangerous instrument. In response, the People concede that the record lacks support for the imposition of points under this risk factor. This court agrees, finding that the record fails to support the assessment of any points under this factor for use of a dangerous instrument by clear and convincing evidence. Notably, neither the People nor the defendant has addressed whether points should be imposed for the use of forcible compulsion under this risk factor. Nor did the Board address the issue. Nevertheless, the court recognizes that the defendant used forcible compulsion against the victims by threatening them with the implication that he had a weapon. For SORA purposes, the Risk Assessment Guidelines and Commentary adopt the Penal Law definition of forcible compulsion, which is to compel by either “(a) use of physical force or (b) a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.” (SORA: Risk Assessment Guidelines and Commentary at 8 [2006].) Here, the defendant’s repeated actions in placing his hand in his pocket, implying he had a weapon, while stating “don’t make me mad,” as he ordered the victims to remove their clothes and perform oral sex on each other, constituted forcible compulsion. (See People v. Pratt, 42 AD3d 592, 592 [3d Dept 2007].) However, as the Board did not assess any points for this subcategory and the People did not argue for the assessment of such points, the defendant has not had any notice of points sought to be assigned on this basis or meaningful opportunity to respond. Under these circumstances, the assignment of points for this conduct would violate the defendant’s right to due process. (See People v. Montufar-Tez, 195 AD3d 1052, 1052 [2d Dept 2021].) And, in any event, based on this court’s discussion below, the assessment of points for this factor would not change the defendant’s designation. Thus, the defendant is assessed 0 points under this risk factor. 2. Sexual Contact with Victim The Risk Assessment Instrument prepared by the Board assesses the defendant with 25 points for this risk factor. The defendant contests that assessment. He claims that the record lacks the requisite clear and convincing evidence to support this factor. To that end, he challenges the accuracy of the account of the underlying crime in the Board’s case summary and pre-sentence report. He notes that his plea was to a crime without any sexual elements, Kidnapping in the Second Degree. Further, he also observes that during a CPL §730 examination, he insisted he would not plead guilty to any sex crime. In addition to these factors, he also points out the differing accounts the victims gave police about the crime, arguing that these inconsistencies militate against the conclusion there is clear and convincing evidence to establish that the defendant engaged in sexual contact. He highlights their first account of the incident, which omitted any sexual contact entirely, and observes that only in subsequent accounts did they begin to mention that the defendant forced them to engage in oral sex and only later still did either of them state that the defendant directly subjected the female victim to oral sexual contact. The People disagree. They argue that the record is replete with allegations of sexual contact. While conceding that the record contains some inconsistencies, they contend that the credible evidence of sexual contact outweighs them. They direct the court’s attention to multiple DD5 reports that contain the victims’ allegation that the defendant forced them to perform oral sex on each other. The People also note that even from their first report to police, the victims told the officers that the defendant forced them to disrobe. Thus, even at that point, there was a strong indication that the crime was sexually motivated. Moreover, the People emphasize the defendant’s own admission to Detective Molloy, who was the arresting officer, that he engaged in sexual contact with the female victim. Having reviewed the complaint report, DD5s, and other police paperwork, as well as the defendant’s statements, the presentence report, the Board’s case summary and all other documentation in the court file, this court concludes that there is clear and convincing evidence of oral sexual contact by the defendant. Contrary to the defendant’s characterization, the court finds that the complainant’s accounts of sexual contact and the defendant’s own admission to oral sexual contact with the female victim are far more compelling than the sum of inconsistencies as to the details of such contact. Indeed, although the initial complaint report did not contain an explicit allegation of oral sexual contact, it did indicate that the defendant demanded that the victims remove their clothing, suggesting there was more at play than just a motive to rob them. Further, the report itself indicates that the “reporter” who spoke with the police was not one or both of the victims themselves, but an adult sharing a last name with one of the victims, whom the court presumes is a parent or other relative. This fact may explain some of the discrepancies in the account — it appears possible that the victims themselves did not speak to the police that day and, thus, a third party relayed an incomplete version of what occurred. And, of course, the complainants did not draft this complaint report themselves. It contains an officer’s impressions of what they said. Thus, any incompleteness as to the details of the crime is not necessarily attributable to the victims themselves. Importantly, a DD5 report entered less than twenty-four hours after the initial complaints notes that the complainants alleged that they were “sexually abuse[d].” This report, occurring so close in time to the first one, weighs in favor of the conclusion that the complaint report may have been incomplete rather than that the complainants changed their account of what occurred. Further, the detectives investigating the case also ordered a rape kit for the female victim the day after the incident. The prompt treatment of this investigation as one of a sex crime is also strong evidence that the complainants disclosed some form of sexual contact very early on. This conclusion is further corroborated by the next two DD5s the defense attaches to their papers as Exhibits D and E. In the interviews memorialized in those reports, the victims gave nearly identical accounts in which they revealed that the defendant made them perform oral sex on each other in his presence. This interview also took place within twenty-four hours of the initial report of the crime. At that point, the police generated a new complaint report containing these allegations. Thus, the allegation of sexual contact was present almost from the case’s inception. Even if the complainants did not immediately report a complete version of the defendant’s actions, that would not on its own render their subsequent accounts incredible. Although it is possible that they delayed in giving the police the complete details of what occurred, they reported some form of sexual contact within twenty-four hours of their initial report of the crime. Moreover, that the child victims of this crime may have been hesitant to reveal the extent of what occurred is entirely understandable. It is true that the law contains a preference for a “prompt” outcry regarding a sexual crime, based on the notion that a “[t]he outrage in such a case upon a virtuous female is so great that there is a natural presumption that at the first suitable opportunity she would make disclosure of it.” (People v. Rosario, 17 NY3d 501, 512 [2011] [quoting People v. O'Sullivan, 104 NY 481, 486 (1887)].) However, this assumption, set forth by adult male judges in the 19th century, is outdated, sexist (in several ways, given that it proceeds from the premise that all rape victims are female), and, we now know, psychologically inaccurate. As Justice Smith acknowledged in his partial concurrence in Rosario, “[o]bviously, our understanding of the ‘natural’ reaction of a rape victim has changed since 1887.” (Rosario, 17 NY3d at 519 [Smith, J., concurring in part].) He further noted, “[i]n many cases, it is difficult for the victim to report the crime” and “delayed reporting, often understandable in the case of adult victims, is even more so in the case of children abused by adults.” (Id.) Given this phenomenon, piecemeal disclosure of the specific details of a sexual crime is also completely understandable in many cases. These young victims may have been uncomfortable or embarrassed about the acts to which they were subjected and felt more comfortable reporting the defendant’s other criminal conduct first. Accordingly, the possibility that the victims did not immediately report all of the details of this incident does not, in this court’s view, undermine the credibility of their allegations. Undeniably, in the documents presented to the court, the first mention of the defendant directly subjecting one of the victims to sexual contact did not occur until four days after the initial report. This report also mentions that the sexual conduct was revealed “only after secondary interviews.” Nonetheless, the defendant admitted to subjecting the female victim to oral sexual contact in his written statement to police. The defendant’s own admission, together with the victim’s statements to police and eventual revelation of the oral sexual contact — both that they were forced to perform on each other and that to which the defendant directly subjected the female victim — amounts to clear and convincing evidence that this conduct occurred. Unlike the defense, this court is not troubled by the victims’ piecemeal disclosure of the sexual abuse to which they were subjected. That reluctance is in keeping with what we now understand to be a common and readily explicable reaction to trauma. For these reasons, the court imposes 25 points under this risk factor. 3. Number of Victims The Board has recommended that the defendant be assessed 20 points for this factor. But the defendant claims that he should not be ascribed any points under this category. He argues that the lack of clear and convincing evidence that the defendant subjected either victim to sexual contact requires this conclusion. The People, on the other hand, take the opposite position. They argue that 20 points should be imposed, because the defendant readily admitted to abducting two children in his 730 examination and presentence report. As discussed thoroughly above, the court disagrees with the defense’s contention that there was inadequate evidence of sexual contact. Moreover, the court finds that the defendant subjected both victims to sexual contact by forcing them to perform oral sex each other, even setting aside the defendant’s direct sexual contact with the female victim. Initially, the court notes that conduct need not rise to the level of a SORA offense to be considered in assessing points under risk factor 3. (See People v. Izzo, 26 NY3d 999, 1002 [2015]; People v. James, 165 AD3d 850, 850-851 [2d Dept 2018].) And, crucially, risk factor 3 does not require “actual, physical sexual contact between the offender and the victim.” (See James, 165 AD3d at 851.) In People v. James, the defendant forced one victim at gunpoint to engage in sexual conduct with a second victim, whom the defendant and his accomplices had already repeatedly raped. (Id.) The Appellate Division found that the defendant’s actions in forcing the first victim to engage in sexual conduct with the second victim established that the defendant’s conduct involved two victims. Consistent with that decision, the clear and convincing evidence that the defendant forced the two victims to perform oral sex on each other, under the threat of what appeared to be a weapon, is more than sufficient to demonstrate that his crime had multiple victims. Accordingly, the court assesses the defendant 20 points under this risk factor. 4. Duration of offense conduct with victim The parties agree with the Board’s recommendation that 0 points be assessed for this factor. 5. Age of victim The parties agree with the Board’s recommendation that 20 points be assessed for this factor. 6. Other victim characteristics The parties agree with the Board’s recommendation that 0 points be assessed for this factor. 7. Relationship with victim The parties agree with the Board’s recommendation that 20 points be assessed for this factor. 8. Age at first sex crime The parties agree with the Board’s recommendation that 0 points should be assessed for this factor. 9. Number and nature of prior crimes The parties agree with the Board’s recommendation that 30 points should be assessed for this factor. 10. Recency of prior felony or sex crime The parties agree with the Board’s recommendation that 10 points should be assessed for this factor. 11. Drug or Alcohol abuse The parties agree with the Board’s recommendation that 15 points should be assessed for this factor. 12. Acceptance of Responsibility The parties agree with the Board’s recommendation that 0 points be assessed for this factor. 13. Conduct while confined/supervised The parties agree with the Board’s recommendation that 0 points be assessed for this factor. 14. Supervision The parties agree with the Board’s recommendation that 0 points be assessed for this factor. 15. Living/employment situation The parties agree with the Board’s recommendation that 0 points be assessed for this factor. PRIOR FELONY SEX CRIME OVERRIDE The Board has recommended that this court apply an override for the defendant’s prior felony sex crime conviction, which would render the defendant a presumptive risk level 3. The defendant argues that his previous felony conviction, Kidnapping in the Second Degree, does not qualify as a sex crime within the meaning of the SORA Guidelines and Commentary. While the defense acknowledges that the defendant’s prior offense is designated as a sex offense requiring registry pursuant to Correction Law §168-a(2)(a)(i), they argue that there is a distinction between a “sex crime,” which is required for the override, and a “sex offense,” as defined in the Correction Law. The defendant contends that, because “sex crime” is not defined in the Correction Law, the court should give the term its ordinary meaning. Under this construction, the defendant argues, his prior conviction would not qualify as a sex crime because the kidnapping did not involve any sexual component. The People oppose the defendant’s claim. They submit that the terms “sex crime” and “sex offense” are used interchangeably in SORA jurisprudence, indicating that any felony offense listed as a sex offense in the Correction Law should be treated as a sex crime for the purposes of the override. This court agrees with the People. In People v. Lancaster, 128 AD3d 786 (2d Dept 2015), the Second Department analyzed whether a particular military offense qualified as a prior felony sex crime for the purposes of the override. In doing so, they interpreted the statute under which the defendant was convicted to determine whether it was a “sex offense” within the meaning of Correction Law §168-a(2)(d)(ii), ultimately concluding that the offense did not meet that definition and, thus, did not constitute a prior felony sex crime as needed to apply the override. (Lancaster, 128 AD3d at 787.) This analysis demonstrates that the relevant inquiry for determining whether an offense qualifies as a “prior felony sex crime” warranting an override is whether it is among the felony sex offenses listed in the Correction Law. Pursuant to Correction Law §168-a(2)(a)(i), Kidnapping in the Second Degree (Penal Law §135.20) is a sex offense so long as the victim is under seventeen years old and the offender is not the parent of the victim. Those conditions are clearly met here. The defendant’s prior crime involved pushing a thirteen-year-old boy, who was a stranger to him, into a car after threatening him and taking his clothing and money. Because this crime is among the sex offenses defined in Correction Law §168-a(2)(a), it qualifies as a prior felony sex crime warranting the application of the override. The court, therefore, applies the override and the defendant is a presumptive risk level 3. APPLICATION FOR DOWNWARD DEPARTURE Based on this court’s conclusions with respect to each of the risk factors, the defendant has an aggregate score of 140 points and is a presumptive risk level 3. The prior felony sex crime override also renders him an automatic presumptive risk level 3. The defendant, however, argues that a number of mitigating factors warrant a downward departure in this case. To that end, he claims that his age, medical condition, positive activities while incarcerated, and exceptional response to treatment are not adequately taken into account by the guidelines. Pursuant to the SORA Guidelines, a court may depart from an offender’s presumptive risk level if it is established, by clear and convincing evidence, “that there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines.” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006 ed].) Even if such a factor exists, “the court still has the discretion to refuse to depart or to grant a departure.” (Gillotti, 25 NY3d at 861.) After determining whether an aggravating or mitigating factor exists, “the court must exercise its discretion by weighing the aggravating or 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.” (Id.) This court finds that a downward departure is not appropriate in this case. While the defendant’s age and health are not explicitly taken into account by the guidelines, his conduct while confined and treatment are. Moreover, this court finds that there is not anything exceptional about any of these factors, including the defendant’s response to treatment, that necessitates a downward departure. Under the totality of the circumstances, the defendant is still at a high risk of reoffending given his repeated, serious conduct involving children. Thus, as a matter of discretion, this court declines to grant a departure. Based on the override for the prior felony sex crime and the defendant’s aggregate score of 140 points and the risk factors in support thereof, the court finds that the defendant should be designated a level 3 sex offender. ORDERED: that pursuant to Correction Law §168-n (1), this Court determines the defendant to be No designation; A sexually violent offender; A sexual predator; No upward departures; No overrides; Decision reserved; and it is further ORDERED: that with respect to the level of notification, this Court determines the defendant should be rated a Level 3. Dated: August 20, 2021
