People v Burden

[*1] People v Burden 2005 NY Slip Op 50286(U) Decided on March 4, 2005 Supreme Court, Bronx County Massaro, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 4, 2005
Supreme Court, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK,

against

JOSEPH BURDEN, Defendant.



30026/2004



For the People of the State of New York

THE HONORABLE ROBERT T. JOHNSON

District Attorney

By: KIMBERLY CAPERS, ESQ.

Assistant District Attorney

For Joseph Burden

ANGEL PEREZ, ESQ.

Dominic R. Massaro, J.

Following a conviction after the entry of a nolo contendre plea(s) in the Superior Court of Connecticut, Fairfield County, for two counts of Sexual Assault in the Fourth Degree (Conn. Gen. Stat. § 53a-73a [a] [2]) and one count of Breach of Peace (Conn. Gen. Stat. § 53a-181), Defendant was required to register as a Sex Offender there. Since his relocation to Bronx County, where he is now under the supervision of the Department of Probation, Defendant has been required by the Board of Examiners of Sex Offenders (hereinafter "the Board") to register as a sex offender in New York. Pursuant to the Sexual Offender Registration Act (hereinafter "SORA"), despite a Risk Assessment Score indicating that he is a Risk Level 1, the Board recommends imposing an upward departure to a Risk Level 2. Defendant opposes the departure; it is, however, warranted here.

Factual Setting

According to records provided by the Superior Court of Connecticut, Fairfield County, Defendant was arrested in March, 2001 for three separate incidents. More specifically: On September 14, 2000, a 32-year-old female . . . complained that she was the victim of a sexual assault. According to the victim, she was at the Derma Clinic in Westport on September 13, 2000, where she received a massage from "Joseph" who she had received massages from in the past. She began by lying on her stomach, and [*2]upon turning onto her back, he began to touch her left inner thigh. Joseph's hand came very close to her crotch. . . . Joseph then moved to her right leg, and once again massaged her inner thigh, but this time he "stuck his fingers under the victim's underwear and began to rub her vagina." He then inserted his fingers into her vagina. The victim stated she felt him insert his fingers into her vagina "a couple of times." Joseph then walked around the table and brushed his erect penis against the bottom of the victim's foot at which time she stated he had an erection. The victim stated she felt paralyzed during the incident and just froze.

. . . On February 20, 2001, a 35-year-old female . . . [complained] that she had been sexually assaulted while receiving a massage at the Derma Clinic in Westport, CT on that same day. According to the victim, a man named Joseph (the defendant) conducted the massage and it began by her lying on her stomach. She then turned on to her back at which time Joseph began massaging her leg, pulling her leg off the table. The victim then felt Joseph's hand touch her vagina. Joseph then began to massage her other leg, once again touching her vagina. Joseph then began to massage her arm. . . . He then placed the palm of the victim's hand on his crotch at which time the victim felt Joseph's erect penis. He did this with both hands, one at a time. The victim stated that she felt "paralyzed" during the assault. . . . She indicated that she was afraid to confront Joseph.

. . . On March 8, 2001, a 43-year-old female [complained] that she was sexually assaulted while receiving a massage at the Derma Clinic in Westport, CT. According to the victim, she received a massage from "Joseph" and he kept manipulating her hands to come into contact with his crotch. She indicated that this happened approximately six times, during which time Joseph had an erection. . . . During the massage, Joseph kept leaning against victim's head so that his crotch and erect penis would come into contact with the top of the victim's head. The victim then turned onto her stomach and stated that Joseph was working on her legs. At this time, the victim stated that Joseph slid his hand all the way up her leg making contact with her vagina. The victim reacted by "smashing her legs shut" at which time he stated "ohh."

On September 11, 2003, in exchange for his plea(s), Defendant was sentenced to three years probation for the sexual assault charges and one year probation for the breach of peace charge, all to run concurrently. Prior to the imposition of sentence, the victims submitted [*3]voluminous statements in which, in addition to describing the incidents, they also described the emotional and psychological effects of Defendant's actions as well as their feelings regarding the level of notification; all wanted the highest possible. Moreover, the Superior Court also had Defendant interviewed by the Center for the Treatment of Problem Sexual Behavior; it found: [T]he offender was uncooperative regarding any discussion of the offense behavior. . . . [T]he offender's dangerousness rating, or Severity of Risk . . . would fall into the Moderate range. . . . Mr. Burden's Recidivism/Sex Offense Relapse Risk, or Likelihood of Future Risk Potential would be Moderate. . . . Mr. Burden's Prognosis, or likelihood that he would benefit from treatment, would seem to be Poor. . . . His long term risk potential for sexual offense re-conviction is Medium Low. . . . Burden, according to the convictions and victim accounts of his actions, took advantage of numerous women while they were most vulnerable. He used his role as a massage therapist as well as the built in trust one places at the hands of a therapist to suit his own sexual needs. . . . Burden's behavior is typical of that of a sex offender. The offender chose a profession where victim access was not an issue, nor was the vulnerability of the potential victims, as they lie partially clothed on a table below him. He worked very hard to gain the trust of all those around him. Once trusted, it becomes easier to doubt the reports of inappropriate behavior. Each offense Burden committed was strangely similar in approach and in how he carried out the assaults. What is most concerning . . . is that while criminal charges for sexual assault were pending against him, he remained in the position as a message therapist and offended again and again. He then began practicing in the State of New York as a massage therapist. . . . Burden failed to take responsibility for any of his actions, and has in fact remained silent regarding this offense.

Defendant was required to register as a Sex Offender in Connecticut for ten years. He was also required to: seek treatment and counseling; turn in his Connecticut and New York massage therapy licenses; not practice any such therapy; not sleep outside of his home overnight and abide by any curfew imposed by the Probation Department; have all employment pre-approved by the Probation Department; and "not . . . obtain any employment that would allow the supervision of others to include, but not to be limited by the following: massage therapy, personal trainer, and health care profession."

On May 24, 2004, the Board submitted a Risk Assessment Instrument. Even though he was only assessed a score of 60, the Board recommends classifying Defendant as a Risk Level 2 based on an upward departure. Specifically, the Board assessed: 10 points for sexual contact under clothing; 30 points for there being three or more victims; and 20 points for his relationship with the victims being both professional and established for the purpose of victimizing. It is [*4]noted that no points were assessed for Defendant not accepting responsibility or having an inappropriate employment situation. Each of those factors would add ten points to Defendant's assessed score, creating an aggregate of score of 80 and placing him at a Risk Level 2.

The Board then compiled a Case Summary "based upon a review of the inmate's file which includes but is not limited to the pre-sentence investigation, prior criminal history and post-offense behavior" (Risk Assessment Instrument, pp. 5-6). In addition to describing the aforementioned three incidents, the summary further stated, in pertinent part, that:

It is noted that originally, Burden was charged with 8 counts of Sexual Assault, and there were more victims than the [3] described. . . . While being interviewed by Connecticut Probation, Burden refused to discuss the offenses, based upon his attorney's advice. It is noted that when he was sent to a sex offender evaluation, Burden was "uncooperative" about discussing the sexual offenses. However, upon transferring his Probation to Bronx County, New York, he was again evaluated and has reportedly begun to participate in a sex offender counseling program. . . . According to his Probation Officer, he has been compliant so far while on Probation. Upon his conviction, he forfeited his massage license and, although he now indicates that he wants to be a Real Estate Broker, New York State will not license him as a convicted felon. . . . Burden is assessed as a Level I risk. However, based upon the fact that he used his professional relationship to subject numerous women to sexual contact, the fact that he continued to work in a health club upon moving to New York and the fact that he now wants to work in Real Estate, where he could have easy and solitary access to women, a departure to a Level II risk is warranted.

(Risk Assessment Instrument, pp. 5-6).

In addition, Defendant has offered numerous letters from relatives, friends, former employers, coworkers and clients attesting to his good character and low risk to reoffend. However, at least two of these letters appear to indicate that he was either still providing massage therapy or employed at a health club after the imposition of sentence, which directly contravenes the terms of his probation.

Arguments of Counsel

The People argue that the upward departure requested by the Board should be imposed because, since Defendant is seeking to become a realtor, he would be placed in situations where he would be alone and unsupervised with females, thus creating a greater risk of possible reoffense. Defendant argues that the risk assessment score should be presumed accurate and that the occupation Defendant is seeking would place him in a far less dangerous situation than his employment at the time of these incidents. Moreover, Defendant claims that the assignment of a Risk Level 2 would make him ineligible to obtain a real estate license, which disallows anyone with a felony conviction.

Discussion

[*5]Pursuant to SORA, when a sex offender from another state has established residence in New York, "[t]he board shall determine whether the sex offender is required to register with the division [of criminal justice services]." Correct. Law §168-k (2). The Board shall "make a recommendation regarding the level of notification . . . and whether such sex offender shall be designated a sexual predator, sexually violent offender, or predicate sex offender." Correct. Law § 168-k (2).

The level of notification a defendant is assigned is based upon "the risk of a repeat offense." Correct. Law § 168-l (5). "The offender's risk level determines the amount of information that can be disseminated about him to the public . . . [and] the threat posed by a sex offender depends upon two factors: (i) the offender's likelihood of reoffense and (ii) the harm that would be inflicted if he did reoffend" (Guidelines, pp. 1-2). The two risk assessment levels that are pertinent to the case at bar are a Level 2 designation if the risk of repeat offense is moderate and a Level 1 designation if it is low. See Correct. Law § 168-l (6) (b), (c). Although in both cases "the law enforcement agency or agencies having jurisdiction and the law enforcement agency or agencies having had jurisdiction at the time of his or her conviction shall be notified" (Correct. Law § 168-l [6] [a], [b]), when an offender is designated a Level 2, those agencies: may disseminate relevant information which shall include a photograph and description of the offender and which may include the name of the sex offender, approximate address based on the sex offender's zip code, background information including the offender's crime of conviction, modus of operation, type of victim targeted, the name and address of any institution of higher education at which the sex offender is enrolled, attends, is employed or resides and the description of special conditions imposed on the offender to any entity with vulnerable populations related to the nature of the offense committed by such sex offender. Any entity receiving information on a sex offender may disclose or further disseminate such information at its discretion.

Correct. Law § 168-l (6) (b).

In determining the risk level, the Board has promulgated fifteen factors that are divided into four categories. These guidelines are based on an individualized approach that is mandated by Federal statute, see 42 U.S.C. § 14071 (a) (2), and they are designed to "eschew per se rules [so] that risk should be assessed on the basis of a review of all pertinent factors" (Guidelines, pp. 2-3). Under each factor, "the court should look to the most serious wrongdoing in each category" (Guidelines, p. 6), and only one of the options is chosen if any are applicable. If the aggregate score from all of these factors is at least 75 points but no greater than 105, the offender is presumptively a Risk Level 2. If it is 70 or less, he is presumptively a Risk Level 1.

The relevant factors within each category are now reviewed:

1.Current Offense(s). To "be completed on the basis of all of the crimes that were part of the instant disposition" (Guidelines, p. 5). If the offender engaged in sexual contact with the victim under the victim's clothing, 10 points are assigned. If three or more victims were abused, 30 points are assigned because "[t]he existence of multiple victims is indicative of [*6]compulsive behavior, and is therefore a significant factor in assessing the offender's risk of reoffense and dangerousness" (Guidelines, p. 10). If the crime was directed at a person with whom a relationship had been established or promoted for the primary purpose of victimization, or arose in the context of a professional relationship between the offender and the victim and was an abuse of such relationship, 20 points are assigned" (Guidelines, p. 12). The phrase "established or promoted for the primary purpose of victimization" includes someone "who chooses his profession to gain access to victims and 'grooms' his victims before sexually abusing them . . . [and] the abuse of professional relationship reaches health care providers and others who exploit a profession relationship to victimize those who repose trust in them" (Guidelines, p. 13). These 60 points were assigned here.

2.Criminal History. No points were assigned under this factor.

3.Post-Offense Behavior. Although the Board assigned no points under this factor, it is noted that if an offender has not accepted responsibility for his conduct, 10 points are assigned. Not surprisingly, "such acknowledgment is critical, since an offender's ability to identify and modify the thoughts and behaviors that are proximal to his sexual misconduct is often a prerequisite to stopping that misconduct" (Guidelines, pp. 15-16). In addition, in People v. J.G., 171 Misc 2d 440, 443-46 (Supreme Ct. Richmond Cty. 1996), that court explained that "[a] defendant who takes an Alford-Serrano plea (see North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 [1979]; People v. Serrano, 15 NY2d 304 [1965]), does not accept responsibility for the offense. . . [because] [h]e cannot protest his innocence when [so] pleading guilty . . . and then claim that no consequences or conditions subsequent to the plea should apply to him." See also Silmon v. Travis, 95 NY2d 470 (2000); People v. Chilson, 286 AD2d 828 (3rd Dept. 2001) ("denial of guilt during the presentence investigation reflects lack of acceptance of responsibility"), lv. denied, 97 NY2d 655 (2001); Guidelines, at 16 ("An offender who pleads guilty but tells his pre-sentence investigator that he did so only to escape a state prison sentence has not accepted responsibility.").

4.Release Environment. Although the Board assigned no points under this factor, it is noted that if an offender's employment situation is inappropriate, 10 points are assigned. As explained in the Guidelines, "[m]any sex offenders are opportunistic criminals whose likelihood of reoffendeing increases when their release environment gives them access to victims or a reduced probability of detection" (Guidelines, p. 17).

Notwithstanding, this presumed determination by the Board is merely a recommendation. The supreme court in the county of residence of the sex offender is to make the actual determination regarding whether a defendant is a Sexual Predator, Sexually Violent Offender or Predicate Sex Offender, and if he is to be designated a Risk Level 1, 2 or 3. In making its determination: [t]he state shall . . . bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence. . . . In making the determinations the court shall review any victim's statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any material submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is [*7]relevant to the determinations. If available, facts proven at trial or elicited at the time of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated. The court shall render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based.

Correct. Law § 168-k (2). See also People v. Mitchell, 300 AD2d 377 (2nd Dept. 2002) ("The hearing court properly relied upon . . . the plea proceeding, the pre-sentence report, and the case summary of the Board."), lv. denied, 99 NY2d 510 (2003); People v. Wroten, 286 AD2d 189 (4th Dept. 2001) (court entitled to consider and rely on victim's statements), lv. denied, 97 NY2d 610 (2002); People v. Green, 5 Misc 3d 1029 (Sup. Ct. Monroe Cty. 2004) ("SORA hearings . . . are not contemplated 'to resemble mini-trials.'"), quoting, People v. Barnes, 6 Misc 3d 469, 473 (Sup. Ct. Monroe Cty. 2004), and United States v. Martir, 782 F.2d 1141, 1144-45 (2nd Cir. 1986); People v. Brasier, 169 Misc 2d 337, 339-40 (Sup. Ct. Bronx Cty. 1996) ("[T]he hearing contemplated by this statute does not litigate guilt or nonguilt but 'is a summary proceeding which does not trigger strict evidentiary rules or all the procedural safeguards available to a defendant in a criminal action.'"), quoting, People v. Recor, 209 AD2d 831 (3rd Dept. 1994), aff'd, 87 NY2d 933 (1996); Guidelines, p. 5 ("The evidence can be derived from the sex offender's admissions; the victim's statements, the evaluative reports of the supervising probation officer, parole office or corrections counsel; or from any other reliable sources. Notably, the Board is not limited to the crime of conviction but considers the above in determining an offender's risk level.").

Therefore, the court is to use the same factors as the Board in making its determination. See People v. Stevens, 91 NY2d 270 (1998). However, the ability of the court to depart from the Board's recommendation is: premised on a recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case. . . . Of course . . . [t]he expectation is that the instrument will result in the proper classification in most cases so that departures will be the exception not the rule. . . . [Therefore,] the court may not depart from the presumptive risk level unless it concludes that there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines.

(Guidelines, p. 4). See also Matter of Vandover v. Czajka, 276 AD2d 945 (3rd Dept. 2000); Matter of O'Brien v. State of New York Division of Probation and Correctional Services, 263 AD2d 804, 805-06 (3rd Dept. 1999), lv. denied, 94 NY2d 758 (1999); Matter of New York State Board of Examiner of Sex Offenders v. Ransom, 249 AD2d 891, 891-92 (4th Dept. 1998) ("The court . . . may depart from that recommendation and determine the sex offender's risk level based upon the facts and circumstances . . . in the record. The Board . . . serves only in an advisory capacity . . . similar to the role served by a probation department in submitting a sentencing recommendation.").

[*8]Here, Defendant was convicted of Conn Gen. Stat. § 53a-73a (a) (2), a class A misdemeanor in that state, which states that "a person is guilty of sexual assault in the fourth degree when such person subjects another person to sexual contact without such other person's consent."[FN1] In Connecticut, sexual contact includes "any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor." (Conn. Gen. Stat. § 53a-65 [3]), and intimate parts are defined as "the genital area, groin, anus, inner thigh, buttocks or breasts" (Conn. Gen Stat. § 53a-65 [8]). This crime is analogous to the crime of Sexual Abuse in the Third Degree in New York, a class B misdemeanor, which states that "a person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent." Penal Law § 130.55. Likewise, sexual contact in New York is defined as "any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party." Penal Law § 130.00 (3). As Penal Law § 130.55 is not a sexually violent offense as defined in Correction Law § 168-a (3), it is clear that the Board properly determined that Defendant is not a Sexually Violent Offender, Predicate Sex Offender or Sexual Predator.

Therefore, it must be determined if Defendant has even been convicted of a sex offense as defined in Correction Law § 168-a (2), because, if not, he is not required to register. Correction Law § 168-a (2) (d) defines a sex offense, in pertinent part, as "a conviction of (i) an offense in any other jurisdiction which includes all of the essential elements of any such crime provided [herein]."

The Issue of Jurisdiction

In making this determination, the first issue the Court must address is whether it has jurisdiction to determine if Defendant is required to register. This issue has yet to be addressed by the First Department and the decisions of other courts are divergent. In People v. Carabello, 309 AD2d 1227, 1228 (4th Dept. 2003), the Fourth Department dismissed a defendant's challenge to require him to register as a sex offender, holding that: [T]he Board is the administrative agency that is statutorily empowered to make that determination (see Correction Law § 168-k [2]). The role of the court is limited to assigning defendant a risk level classification and determining whether defendant is a sexual predator (id.). A challenge to the Board's initial determination that a defendant is a registerable sex offender constitutes a challenge to a determination of an administrative agency and is not properly raised in the subsequent court proceeding involving the separate and distinct risk level determination. . . . The proper procedure for challenging the constitutionality of the Board's initial determination that the defendant is required to register is a CPLR article 78 proceeding.

Similarly, the Second Department held in Matter of Mandel, 293 AD2d 750, 751 (2nd [*9]Dept. 2002), app. dismissed, 98 NY2d 727 (2002), that: The language of the statute directs the Board to determine whether a person convicted of an offense in a foreign jurisdiction must register as a sex offender in New York. Further, SORA limits the court's function to determining the duration of registration and the level of notification. Since the court's function in a proceeding pursuant to Correction law article 6-C is limited, in the absence of a proceeding pursuant to CPLR article 78, the court may not review the Board's registration determination.

By way of contrast, in Matter of Nadel, 188 Misc 2d 427 (Sup. Ct. New York Cty. 2001), that court held that: [T]he statute specifically states . . . that the Board's determination concerning the level of notification and duration of registration is a recommendation. . . . Moreover, the statute explicitly grants to the court the ultimate power to decide the offender's level of notification and duration of registration. This court concludes that the only reasonable interpretation of the statute is that the power of the court to determine how long and at what level the offender has to register includes the power to determine whether registration is required at all. This conclusion is further supported by . . . the statute which requires the court to "render an order setting forth its risk level determination and the findings of fact and conclusions of law on which the determination is based" (Correct. Law § 168-k [2]). Certainly, any legal conclusions concerning the level of notification and duration of registration must encompass the essential legal issue of whether the offender has to register at all. . . . [T]he test to determine if an out-of-State conviction qualifies as a sex offense under SORA . . . involves a painstaking comparison of the New York and foreign statutes. To conclude that this court does not have the power to review the Board's decision would mean that the Legislature provided for the courts to make the simplest of SORA determinations, yet entrusted the much more complicated legal conclusions to an administrative agency free from any judicial review. . . . The Legislature could not have intended this anomaly. . . . To hold that this court has no power to review the Board's determination of the purely legal issue involved here would . . . mean that if a court, at the risk level hearing, notices a clear legal error in the Board's conclusion that an out-of-State offender must register, . . . it would be forced to issue an illegal order directing the offender to register. Further, it would mean that an aggrieved offender seeking relief would be forced to pursue two distinct proceedings: an appeal pursuant to SORA of [*10]the court's risk level determination, and a CPLR article 78 proceeding attacking the Board's determination that registration is warranted. Such a result could not have been what the Legislature intended (See People v. Kearns, 95 NY2d 816 [2000]).

See also People v. Hernandez, 93 NY2d 261, 266 (1999) ("certification as a sex offender . . . appealable as part of a direct appeal from the judgment of conviction"); People v. Godbolt, Misc 3d , 2002 WL 1162616 (Sup. Ct. Queens Cty. May 17, 2002); People v. Gundel, Misc 3d , 2002 WL 205884 (Cty. Ct. Dutchess Cty. Jan. 15, 2002).

The First Department has yet to rule on this issue. The only guidance received from our Appellate Division was in People v. Millan, 295 AD2d 267 (1st Dept. 2002). In that case, the lower court ruled that a defendant who was convicted in Federal Court of attempting to "knowingly receive[] or distribute[] any visual depiction . . . involv[ing] the use of a minor engaging is sexually explicit conduct" (18 U.S.C. § 2252 [a] [2]), was required to register as a sex offender because that federal statute contained all of the essential elements of Penal Law § 263.16, Possessing a Sexual Performance by a Child, a Class E felony. However, on appeal, the First Department reversed and vacated the lower court's finding that the defendant was a risk level one sex offender because he was convicted in Federal Court of attempting to commit the Federal crime, the equivalent of which would be Penal Law § 110/263.16, Attempted Possessing a Sexual Performance by a Child, a Class A misdemeanor. Therefore, the First Department appeared to allow the lower court to rule on whether a defendant is, in fact, required to register as a sex offender in the first place.

Here, not only does the Court agree with the reasoning in Nadel (supra), but feels constrained to follow such construction based on both the First Department's apparent agreement in Millan (supra), and the Court of Appeals utilization of a similar rationale in Hernandez (supra).

The Issue of "Essential Elements"

This leads to the second determination that the Court must make, namely, whether it can only rely on the crime of conviction or if it can consider other reliable evidence in determining whether Defendant's conviction included all of the essential elements of a crime that would qualify as a sex offense pursuant to Correct. Law § 168-a (2) (d) (i). Although it is well settled that other reliable evidence may be reviewed when determining a defendant's risk level (see Wroten, supra; People v. Wiggins, 1 Misc 3d 913 [Supreme Ct. Bronx Cty. 2004]), there is no such uniformity regarding determining if a defendant has a predicate sex offense.

In Nadel, supra, at 436-37, that court, after noting "[t]he statute does not define 'essential elements' nor does it provide any further guidance on how to determine if an out-of-state conviction qualifies for New York registration," held that the "essential elements" analysis developed by the Court of Appeals in People v. Olah, 300 NY 96 (1949), to determine if out-of-state convictions can be used to adjudicate defendants as predicate felons, should be applied to SORA because "the language used in Correct. Law § 168-a (2) (b) . . . is identical to the language of the predicate felony statutes." Under this analysis, "the court is limited to comparing the New York statute with the out-of-State statute, and may not consider the factual allegations in the indictment or the evidence at trial." Nadel, supra. See also Godbolt, supra; Gundel, supra. In [*11]applying this paradigm to the case at bar, as the crime of conviction is not a sex offense, Defendant would not have to register.

By way of contrast, in People v. Millan, 189 Misc 2d 419, 426-28 (Sup. Ct. New York Cty. 2001), rev'd on other grounds, supra, that court, in using the Indictment and pre-sentence report in determining whether a defendant's out of state conviction had the essential elements of a New York sex offense, explained that: SORA is unquestionably a remedial, or civil statute. . . . [R]emedial statutes . . . are to be liberally construed. . . . A liberal construction of such statutes is one which is in the interest of those whose rights are to be protected, and if a case is within the beneficial intention of a remedial act, it is deemed within the statute, though not actually within the letter of the law. . . . The court may take a liberal view towards the application of the registration legislation so as to spread their beneficial results as widely as possible and to ensure its application to as many convicted persons as possible. . . . Thus, as a remedial, rather than a penal statute, the essential element test under SORA should be liberally construed to accomplish the express intent of the New York Legislature. In this way, this court rejects the conclusion of the Nadel court that the essential elements test should be strictly construed, because the same words are strictly construed in the context of applying predicate felony statutes, where such statutes, being penal, are properly strictly construed. . . . [T]here is no absolute limit to inquiry that may be made into the underlying facts . . . in the civil context; in fact, following the legislative intent, there should be no restriction at all, provided that such inquiry is carried out in an appropriate manner . . . and as to accord the putative registrant proper procedural due process. It is therefore the holding of this Court that this Court may take into account reliable, admissible evidence to determine whether the defendant's conviction . . . contains the "essential elements" of New York crime and that in this civil context, "essential elements" means no more than that behavior which was in fact found to be criminal in the non-New York case, and which would have been criminal under the relevant New York statute.

Similarly, in People v. Mitch, 1 Misc 3d 905 (County Ct. Yates Cty. 2003), that court held that a plea in a Florida court in which an adjudication of guilt and sentence were withheld and the defendant was instead placed on probation which was terminated early due to a successful completion of the special condition, was nonetheless considered a conviction under SORA. In doing so, that court looked to the defendant's plea allocution, in which he admitted "fondling the breasts of a female under the age of fourteen over a period of two to three years. That conduct is similar to the New York crimes of Forcible Touching (P.L. § 130.52) and Sexual [*12]Abuse in the Third Degree (P.L. § 130.55)." Mitch (supra).[FN2]

The Court agrees with the reasoning in Millan (supra), and Mitch (supra), particularly since it is well settled that SORA is a civil remedial statute and not a criminal punitive statute. See Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). Moreover, it is noted that, in the same manner in which the First Department never explicitly disavowed the lower court's decision in Millan (supra), to address this issue rather than requiring the defendant to file a CPLR Article 78 petition, it similarly never explicitly disavowed its reasoning in reaching its determination.

Here, there is clear and convincing evidence as provided by the Superior Court of Connecticut, Fairfield County, that, on at least two occasions, Defendant inserted his finger into the vagina of another person without that person's consent while that other person was lying partially naked underneath Defendant on a massage table and he was physically manipulating them. Moreover, as this caused the victims to feel paralyzed and freeze in fear, they were clearly physically helpless as that term is defined in the Penal Law. See Penal Law § 130.00 (7). Therefore, under the Millan/Mitch (supra), analysis, Defendant's actions clearly constitute the sex offense of Sexual Abuse in the Second Degree (Penal Law § 130.60 [1]), as well as the sexual violent offense of Sexual Abuse in the First Degree (Penal Law § 130.65 [2]).

The Court further finds that Defendant should be classified as a Risk Level 2 sex offender. "A court may upwardly or downwardly depart from an offender's presumptive risk level if it finds that, on the record before it, there exists an aggravating or mitigating factor of a kind or to a degree not otherwise adequately taken into account by the Guidelines." People v. S.G., 4 Misc 3d 563, 572 (Supreme Ct. New York Cty. 2004). See also People v. Salaam, 174 Misc 2d 726, 736 (Supreme Ct. New York Cty. 1997) ("circumstances that may warrant a departure cannot, by their very nature, be comprehensively listed in advance."). The primary concern in whether to grant a departure is if the risk assessment overstates or understates a "defendant's risk to public safety." S.G., supra, at 573. In People v. Moon, 3 AD3d 600, 601 (3rd Dept. 2004), lv. denied, 2 NY3d 743 (2004), and Matter of VanDover v. Czajka, 276 AD2d 945 (3rd Dept. 2000), the Third Department noted that upward departures were valid when based on a "victim's complaint of . . . obvious physical helplessness against the sexual assault of an adult male" and a defendant not fully accepting responsibility for his actions, respectively. See also S.G., supra, (departure allowed where Board failed to assess points for a defendant failing to accept responsibility or express remorse); Salaam, supra (departure allowed where Board improperly failed to assess points for a defendant's living environment and failure to accept responsibility).

People v. Marinconz, 178 Misc 2d 30 (Supreme Ct. Bronx Cty. 1998) is instructive in this matter. In that case, that court (at 34) ordered an upward departure because "the Board's presumptive risk level calculations resulted in an under-assessment of the sex offender's risk to the public safety." This was because the Board "did not assess any points against the defendant for his non-acceptance of responsibility," as it relied on his guilty plea instead of this latter statements "denying memory of his criminal conduct." Marinconz, supra, at 35. The court in [*13]that case also noted that the defendant's participation in a sex offender treatment program did not amount to acceptance of responsibility as his reasoning for participating in the program was "'better safe than sorry' and 'just in case.'" Marinconz, supra. In addition, that court was "further troubled by the fact that the defendant received no points with regard to his release environment . . . [because] [a]n offender who intended to engage in sexual activity with his victim but is prevented from doing so by some factor other than his own change of mind, such as police intervention, still poses a serious threat to the community." Marinconz, supra, at 36, 38. Lastly, in making its determination to impose an upward departure, the court in that case relied on both victim statements and the "psychiatrist who conducted the defendant's presented treatment evaluation." Marinconz, supra.

Similarly here, the Court, in making "an individualized determination based upon a review of all pertinent factors" (Salaam, supra, at 736), finds that the Board failed to assess points against Defendant for his non-acceptance of responsibility based on the fact that he entered a plea(s) of nolo contendre and refused to even discuss the case, let alone accept responsibility, when talking to the Connecticut Center for the Treatment of Problem Sexual Behavior. Although Defendant began to participate in counseling upon his transfer to Bronx County, there is still no evidence that he has accepted responsibility for his actions. The Board also failed to assess points for an inappropriate employment situation as both the Connecticut authorities and letters provided by Defendant indicate that he continued either to be employed as a masseuse or in a health club. Moreover, the Court finds that the fact that as Defendant is seeking employment in a field in which he would have solitary access to women, combined with the emotional trauma he caused to his victims, further buttresses as assessment of points under the factor. It is also noted that the Risk Level 2 assigned to Defendant is unrelated to his application for a real estate license as the information provided to the Court by both the Board and Defendant indicates that such a license is only per se denied if a defendant has a felony conviction. A risk level assessment is completely separate from the crime for which Defendant was convicted and does not change the fact that, here, Defendant was convicted of misdemeanors, and not felonies, in Connecticut.

Conclusion

In sum, all of the sources in this case establish by clear and convincing evidence that Defendant engaged in sexual contact underclothing (10 points), there were three victims (30 points), Defendant's relationship with his victims was established in both a professional relationship and for the purpose of victimizing the complainants (20 points), Defendant has not accepted responsibility (10 points), and Defendant's employment situation is inappropriate (10 points). Therefore, Defendant should have been assessed a total of 80 points and classified as a Risk Level 2.

ORDERED, that Defendant is hereby adjudicated a Risk Level 2 Sex Offender.

The foregoing constitutes the decision and opinion of the Court.

Dated:Bronx, New York

March 4, 2005

[*14]

DOMINIC R. MASSARO,

Justice of the Supreme Court Footnotes

Footnote 1:Although Defendant was also convicted of Breach of Peace (Conn. Gen. Stat. § 53a-181), that charge is not relevant to whether Defendant has been convicted of a sex offense.

Footnote 2:Sexual Abuse in the Third Degree is a sex offense only if the victim is less than eighteen years of age. See Correct. Law § 168-a (2) (b).