People v Hatras

[*1] People v Hatras 2005 NY Slip Op 52037(U) [10 Misc 3d 1059(A)] Decided on December 8, 2005 Suffolk County Ct Gazzillo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2005
Suffolk County Ct

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff

against

WENDY HATRAS, Defendant



1163-2001



HON. THOMAS J. SPOTA, IIIDANIEL P. MC CORMICK, Esq.

Suffolk County District AttorneyAttorney for Defendant

By: A.D.A. DONALD MATES, Esq. 755 Waverly Avenue, Ste. 404

Criminal Courts BuildingHoltsville, NY 11742

Riverhead, New York 11901

Ralph T. Gazzillo, J.

By her guilty plea, the defendant was convicted of a number of felony sex crimes she inflicted upon a two-year-old. Prior to the defendant's release from incarceration, her Sex Offender and Risk Level status were determined by the Board of Examiners of Sex Offenders. Using the so-called "Risk Assessment Instrument" (hereinafter, "the Instrument"), the Board calculated the defendant's numerical score to be 70. That number is the absolute maximum or cut-off score for consideration as a "Level 1 (low)" risk. In its Case Summary, for the myriad reasons contained therein, the Board determined a departure was appropriate and that the defendant was more appropriately a "Level 3" or "high" risk.

These recommendations were contested by the defendant and, pursuant to Corrections Law 168-n, a "Risk Level Assessment" hearing was conducted before the undersigned on November 14, 2005. The result of that proceeding as well as the Court's determination are as follows: [*2]

THE LAW

The analysis begins with the controlling law, its guidelines, and its commands.

The purpose of the Sex Offenders Registration Law (as well as the instant proceeding) is to enable the Court to fashion a device which protects society. See, Preamble, Sexual Offender Registration Act, L. 1995, c.192, Sec 3.

Subsequent case law provides that the elements or ingredients of proceedings such as this are analogous to those of sentencing determinations; as a result, the Court and the parties enjoy some latitude in the type and nature of the evidence to be considered and, as with sentencing, the Court is not bound to strictly apply the formal, rigid rules of evidence. See, e.g., People v. Wiggins, 781 NYS2d 627 {1 Misc 3d 913(A)} (Sup Ct, Bronx County 2004) and the cases cited therein.

In order for the Court to determine the appropriate risk level, the law also points to a number of documents and factors which may offer guidance and direction.

To begin with, there is the numerical scoring, as well as the report of the Board of Examiners. As is now abundantly clear, while a court remains empowered to exercise its discretion and depart from the presumptive risk level as determined by the Instrument as the facts dictate, departures from that determination will be the exception and not the rule. People v. Inghilleri, AD3d , 799 NYS2d 793 (2d Dept 2005); People v. Mc Cormick, AD3d , 801 NYS2d 432 (3d Dept 2005); People v. Guaman, 8 AD3d 545 (2d Dept 2004). This is not to imply that the Risk Level Assessment is sacrosanct. Indeed, a Court is not bound by the numerical score, nor the Board's suggestions, and clearly any judge may depart from those recommendations based upon the particular facts before him or her, as well as the totality of the circumstances. People v. Victor R., supra ; People v. Marinconz, 679 NYS2d 244 {178 Misc 2d 30} (Sup Ct, Bronx County 1998).

In determining the appropriate level to attach, the Court may rely upon many sources. See, e.g., People v. Saleemi, 718 NYS2d 139 {186 Misc 2d 177} [*3](Sup Ct, Queens County 2000) (may utilize the case file, victims' statements, offender's admissions, evaluation of probation, parole, or correction officials, "or any other reliable source.") Moreover, it appears to be well-settled that a departure may be based upon an aggravating or mitigating factor not otherwise taken into account by the guidelines. See, e.g., People v. Roderick O'Flaherty, AD3d , NYLJ 11/18/05, p. 28, col. 1 (1st Dept); People v. Inghilleri, supra ; People v. Girup, 9 AD3d 913 (4th Dept 2004); People v. Guaman, supra ; People v. Marinconz, supra ; People v. Lombardo, 167 Misc 2d 942 (Cty Ct, Nassau, 1996). "The ability to depart is premised on a recognition that an objective [Risk Assessment] instrument, no matter how well designed, will not fully capture the nuances of every case." The Sex Offenders Registration Act-Risk Assessment Guidelines and Commentary, November 1997, page 4. A Court is therefore empowered "to bring its sound judgment and expertise on an otherwise coldly objective exercise which seeks to quantify that which may prove to be highly subjective." People v. Lombardo, supra , at 944.

As to the Board of Examiners, their role as well as their recommendation are advisory. People v. Ransom, 249 AD2d 891 (4th Dept 1998). Again, a court is not bound by their determination and instead may apply its independent judgment (People v. Marinconz, supra ), constrained by the rule requiring that any upward or downward departure must be based upon clear and convincing evidence. People v. Inghillari, supra ; People v. McCormack, supra ; People v. Guaman, supra .

The final result is fact-specific and determined by the totality of each case's individual circumstances. See, e.g., People v. Tucker, 177 Misc 2d 418 (Cty Ct, Nassau, 1998). In essence, there is no "cookie-cutter" formula, and each case is sui generis.

ANALYSIS

I: THE INGREDIENTS

As regards the instant proceeding, besides the law, the components are, obviously, the Instrument, the Board's Summary, as well as the pre-hearing record, [*4]sparse as it may be.[FN1] Included the latter, inter alia, are the defendant's PSI (Pre-Sentence Investigation) as well as various pre-conviction motions and memoranda.

Of special note is something within this case's history which is unique, something typically absent from most criminal proceedings: a videotape of the crime itself - the defendant in flagrante delicto. In fact, the People's concurrence with the Board's recommendation of an upward departure relies heavily upon that tape.

Finally, of course, there is the information provided by the hearing itself.

II: THE NUMERICAL SCORE

As indicated above and as computed by the Instrument, the defendant's raw numerical score was 70. That number is the highest score attainable as a Level 1 or "low" risk offender. As was discussed during the hearing, however, it appears that the defendant should have received an additional 20 points under "Risk Factor" 1.7, "Relationship with victim."

Within the Instrument,"Relationship with victim," is described as "Stranger or established for the purpose of victimizing or professional relationship." That brief explanation merely parrots the statute, Corr. L.168-a(9), and there is precious little other guidance in the interpretation and application of that factor. Indeed, The Sex Offenders Registration Act - Risk Assessment Guidelines and Commentary, supra , at page 12 merely indicates that category includes those who "exploit a professional relationship to victimize those who repose trust in them." The Commentary offers a dentist as its sole example, a situation therein described as fitting "squarely" within the category. The outer boundaries, however, are not listed, but any offender included within this category receives 20 additional points.

Returning to the instant matter, there is no argument that the defendant was hired - albeit "off-the-books" - to tend to the two-year-old victim. She was left alone, unsupervised, with the infant. One need not be a parent to recognize that [*5]there can be no position which is vested with a more important responsibility, or any greater trust. In the matter at bar, however, that trusted relationship was exploited and abused, as was the infant.

In the limited light of the Instrument and the Commentary, and after juxtaposing the category's plain language to the facts of the underlying crime, it appears that the defendant fits into this category and an additional 20 points should be added to her score for a total of 90. Purely numerically, therefore, it appears that the defendant should be considered at least a "Level 2" or "moderate" risk.

III: THE CASE SUMMARY

The defense attacks many of the facts contained within the Board's Summary, their rationale, as well as the result.

As to the factual account, it appears that many of those now contested facts are clearly supported. For example, as reflected by the PSI - specifically page 5 thereof - the defendant's version of the crime seems to roughly parallel that of the Board.[FN2]

Additionally, the Board's stated "grave concern" is founded upon what they cite as the defendant"s "long term history of mental health problems" as well as her "depression, suicide attempts and discontinued mental health treatment." This foundation also seems well supported. Indeed, there is some basis within the record, found in remarks volunteered some time ago by the defense. For example, in his Pre-Sentence Memorandum of May of 2002, while apparently seeking to [*6]mitigate the defendant's culpability and in turn her punishment, the defense wrote: The defendant had been diagnosed prior to the instant case

with not one, but two separate mental illnesses-major depress-

ion and manic depressive/bi-polar syndrome.

The defendant had attempted suicide on two separate occasions.

The defendant had been treated at the following mental health

facilities:

1. South Oaks

2. Teen Challenge

3. Stony Brook Hospital (in-patient)

4. Mather Hospital

5. St. Catherine's (sic) of Sienna

6. Medford Mental Health Clinic

7. Catholic Charities Mental Health Services

8. Pederson-Krag

The defendant was taking a number of medications

including Effexor, Zoloft, Lithium and Risperdol.

The defendant had stopped taking her medications

approximately three weeks before the instant case

because the medications had caused a dramatic

weight gain, thereby exacerbating the defendant's

mental imbalance.

The defendant, herself, was the victim of sexual child abuse on not one but two separate occasions.

(Defendant's Pre-Sentence Memorandum, pps. 1-2.)

Additionally the substance of those admissions were echoed at the defendant's sentencing. See, Sentencing minutes, pps.26-29. [*7]

The defense would be hard-pressed to now deny these concerns, their basis, as well as their validity. In fact, the above-noted remarks of his are all consistent with the Board's findings of a "long term history of mental health problems" as well as her "depression, suicide attempts and discontinued mental health treatment."

IV: THE TAPE

Finally, there is the visual evidence supplied by the tape of the crime.

Following the hearing, the undersigned reviewed the tape. Perhaps the most damning piece of evidence, it not only reveals the defendant's criminality, it undercuts her contention (found in the ultimate paragraph of the Summary) that her's "was a crime generated by anger, not sexual deviation . . . ."

First of all, any "anger" is not visible from the tape. To the contrary, and to be quite frank, she seems bored. For example, the video opens with the defendant in bed with the child while she - the defendant - is apparently watching television; thereafter, the crimes begin. During what seems to be commercial breaks, she occasionally turns her attention - and her criminal intent - to her victim. On one occasion, it also appears that she momentarily interrupted one of her crimes when the television seemed to distract her and catch her interest.

Her actions and apparent attitude towards her helpless victim are also inconsistent with "anger." The child might just as well have been an inanimate object, a plaything, a rag-doll.

Beyond peradventure, all sex crimes are ugly. That notwithstanding, the video captures crimes which are uncommonly grotesque. Aside from the perverse and hideous nature of her acts, the defendant's choice of an infant victim violated all concepts of civilized society. Furthermore, there is the defendant's appearance: dispassionate, casual, and chillingly devoid of any evidence of even a modicum of sympathy for the child. Perhaps equally telling, not so much as a scintilla of any visible remorse followed the crimes. Any "anger" is not readily apparent - to the contrary, there appears an absence of any emotion.

As was indicated above, a discretionary upward departure by the Board [*8]and/or a court is supported where "aggravating factors were not taken into account in the Board's risk assessment instrument." See, e.g., People v. Roderick O'Flaherty, supra ; People v. Inghilleri, supra ; People v. Girup, supra ; People v. Guaman, supra ; People v. Marinconz, supra ; People v. Lombardo, supra .

In the instant matter, there is no evidence that the tape was taken into consideration when developing the Instrument by the Board when issuing its Summary and recommendation.

V: DETERMINATION

Under the totality of these circumstances, the Court is clearly convinced that a departure is necessary and appropriate. In reaching this determination, the undersigned notes the following:

Initially, the Court is disinclined to agree with the Board's conclusion that this defendant presents a threat of the ultimate magnitude requiring the maximum supervision. Simultaneously, the Court does not believe she is at the other end of the spectrum and deserving treatment as a minimal risk.

The remaining option - a "moderate" risk - is not a compromise, merely the middle ground between the two extremes, or even a solution due to the default of the others. To the contrary, this strikes an appropriate balance, is the one warranted by the facts and, of paramount importance, offers a suitable and proper level of protection to society.

Indeed, and as demonstrated above, it appears that the defendant's appropriate score numerical score is arguably a 90, or at least a "Level 2" or "moderate risk." Secondarily, and besides reflecting the additional 20 points added, this level also recognizes the unique, individual nuances of this crime, especially as are captured by the video (and apparently not by the Instrument). Thirdly, this level takes into consideration the Board's concern for the defendant's above-demonstrated mental history, a concern which is shared by the undersigned.

Taking these and all of the appropriate factors into consideration, including the exceptional circumstances of this case, it is the undersigned's considered [*9]judgment that a departure is required, specifically that she is a "Level 2," or "moderate" risk. While admittedly an override of the Instrument, this level is necessary as her crimes require atypical vigilance and exceptional treatment.

The defendant Wendy Hatras is, therefore, hereby adjudicated to be a Sexually Violent Offender in accordance with Corrections Law section 168 a (7)(b).

Additionally, she is found to be a moderate risk and deemed a Level Two (2) offender.

She is directed to report with counsel before the undersigned on December 15, 2005, at 9:30 a.m. Thereafter, she is required to comply with the provisions of the Correction Law. Failure to do so is a separate crime from those for which she stands convicted under the above-captioned indictment, and may constitute an additional criminal offense. See, e.g., Corr. Law 168-f.

The foregoing constitutes the decision and order of the Court.

Hon. Ralph T. Gazzillo

Judge of the County Court

Dated: December 8, 2005 Footnotes

Footnote 1: As this matter was disposed of by plea there is no trial record; also, other than the instant proceeding, no hearings were held.

Footnote 2: During the hearing, the defense did not concede that the account came from the defendant. The context of the PSI's remarks, however, leads to the conclusion that she is the source of this version. Experience with the Probation Department's procedures yields the same result. Moreover, while counsel may wish to contest the PSI or any of its contents, he was provided with a copy of the PSI prior to the defendant's July 22, 2002 sentencing. No application, however, was made to controvert the document. Indeed, as the minutes of that proceeding will reveal, defense counsel relied heavily on portions of the report throughout his remarks (see, sentencing transcript pps. 25-48). In fact, at one point( p. 38) he specifically requested that the report be marked as a exhibit. Parenthetically, PSI's are not only part of the record as a matter of course, but are a component of the "package" which accompanies sentenced prisoners.