People v Fuller

[*1] People v Fuller 2006 NY Slip Op 50647(U) [11 Misc 3d 1081(A)] Decided on April 18, 2006 Westchester County Court Bellantoni, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 18, 2006
Westchester County Court

The People of the State of New York, Plaintiff,

against

Louis Fuller, Defendant.



03-502S



ADA Frederic Green

Westchester County District Attorney's Office

111 Dr. Martin Luther King Jr., Blvd.

White Plains, New York 10601, for plaintiff.

Rebecca A. Schenk, Esq.

Legal Aid Society

One North Broadway

White Plains, New York 10601, for defendant.

Rory J. Bellantoni, J.

This matter appeared on the Court's calendar on February 15, 2006, and March 8, 2006, for a hearing pursuant to the Sex Offender Registration Act, NY CORRECT. Law §168-n. The People, having appeared by ADA Frederic Green, and Defendant having appeared by his Attorney, Rebecca A. Schenk, Esq., who waived Defendant's personal appearance, this Court, having considered the evidence adduced during the hearing, and the arguments made by the Assistant District Attorney, and Defendant's attorney, finds, based upon clear and convincing evidence, that Defendant's risk should be assessed at Level Three (3) based upon a score of 90 points and an upward departure to Level 3. In addition, the Court finds that Defendant, having been convicted of aggravated sexual abuse in the second degree, is a sexually violent offender. NY CORRECT. Law §168-a(3)(a)(i); NY PENAL Law §130.67.

The Court makes the following findings of fact in the following uncontested Risk Factor categories: Subdivision I, Current Offense(s), Risk Factor 1, "Use of Violence", the Court assesses 15 points; Risk Factor 2, "Sexual Contact with Victim", the Court assesses 10 points; Risk Factor 3, "Number of Victims", the Court assesses 0 points; Risk Factor 4, "Duration of offense conduct with victim", the Court assesses 0 points; Risk Factor 5, "Age of Victim", the Court assesses 30 points; Risk Factor 6, "Other Victim Characteristics", the Court assesses 0 points; Risk Factor 7, "Relationship with Victim", the Court assesses 0 points; Subdivision II, Criminal History, Risk Factor 8, "Age at first act of sexual misconduct", the Court assesses 0 points; Risk Factor 9, "Number and nature of prior crimes", the Court assesses 0 points; Risk Factor 10, "Recency of prior felony or sex crime", the Court assesses 0 points; Risk Factor 11, "Drug or Alcohol Abuse", the Court assesses 15 points; Subdivision III, Post-Offense Behavior, Risk Factor 13, "Conduct While Confined/supervised", the Court assesses 0 points; and, Subdivision IV, Release Environment, Risk Factor 14, "Supervision", the Court assesses 0 points.

With respect to the remaining Risk Factor categories, which were contested, based upon evidence presented by the People and Defendant, and the arguments made by the respective counsel herein, the Court makes the following findings of fact in the following Risk Factor categories based upon clear and convincing evidence: Subdivision III, Post-Offense Behavior, Risk Factor 12, "Acceptance of Responsibility", the Court assesses 10 points based upon the pre-sentence report, the case summary, and the risk assessment instrument, finding that Defendant [*2]has not accepted responsibility. The evidence adduced at the hearing demonstrates that Defendant used his drunken state at the time of the commission of the crime as an excuse for his actions. Defendant stated that a probation officer told him that he had molested a child, that he went along with that assessment, but stated he had never been in trouble before.

Defendant has minimized his conduct and has failed to accept responsibility for his actions. In addition, the pre-sentence report indicates that the Defendant expressed little remorse for the victim. The case summary further indicates that, in his intake interview with the Department of Corrections, Defendant admitted guilt, but claimed he was drunk; he offered no further explanations for his actions, nor did he express remorse for his conduct. As set forth in the commentary to the sex offender guidelines, acceptance of responsibility and acknowledgment of the wrongs committed is critical, since an offender's ability to identify and modify the thoughts and behaviors that are proximal to his misconduct is often a prerequisite to stopping the misconduct. Accordingly, the Court assesses 10 points finding that Defendant has failed to accept responsibility.

Additionally, in Subdivision IV, Risk Factor 15, "Living/employment situation", the Court assesses 10 points since Defendant will be homeless upon his release from prison, and may be released to a nursing home. The Court has been advised that Defendant's daughter sold the house where Defendant resided so that the Defendant would not live near the victim upon his release from prison. In addition, Defendant's daughter will not allow Defendant to live with her. There is simply no definitive place, or a controlled environment, where Defendant will be released. Therefore, there will be a reduced probability of detection should Defendant engage in re-offending behavior. Accordingly, the Court finds that Defendant's living situation is inappropriate.

In addition, it is contemplated at this point that, due to Defendant's alleged infirm condition, Defendant will be released to a nursing home. A nursing home is a place that houses, or is frequented by vulnerable people, including children. The Court finds a nursing home to be an inappropriate living environment for Defendant since Defendant, having committed a sexually violent act against a 10 year old child, could very well be in the presence of children whom he may seek to victimize. Based on the foregoing, the Court assesses 10 points for an inappropriate living environment.

In addition, Defendant having moved for a downward departure to Level 1, and the People having been heard in opposition thereto, the Court finds that a downward departure is not warranted under the facts and circumstances of this case. Defendant asserts that a downward departure should be granted based upon the following: (i) Defendant has no prior criminal history; (ii) Defendant has paid for the education of his two children through college; (iii) Defendant has worked two jobs; (iv) Defendant had a wife who died from cancer 13 thirteen years ago; (v) Defendant presently is a cancer victim; and, (vi) Defendant has an unrecognized alcohol problem. The Court notes that the SEX OFFENDER GUIDELINES: COMMENTARY provides, with respect to departures, that:

The risk level calculated from aggregating the risk factors and from applying the overrides is "presumptive" because the Board or court may depart from it if special circumstances warrant. The ability to depart is premised on a recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Not to allow for departures would therefore deprive the Board or the Court of the ability to exercise sound judgment and to [*3]apply its expertise to the offender. Of course, were there to be a departure in every case, the objective instrument would be of minimal value. The expectation is that the instrument will result in the proper classification in most cases so that departures will be the exception not the rule.

Generally, the Board or 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. Cf. 18 U.S.C. §3553 (federal sentencing guidelines departure provision). Circumstances that may warrant a departure cannot, by their very nature, be comprehensively listed in advance. Departures may be upward (e.g., from level 1 to 2) or downward (e.g., from level 3 to 2). For example, if an offender's presumptive risk level is 3 but he suffers from a physical condition that minimizes his risk of repeat offense, such as advanced age or debilitating illness, a downward departure may be warranted.

The Court finds that Defendant's assertions simply do not rise to the level of a mitigating factor, not otherwise adequately taken into account by the guidelines, that would warrant a downward departure. In addition, the People having moved for an upward departure to Level 3, and Defendant having been heard in opposition thereto, the Court finds that the facts and circumstances of this case warrant an upward departure to a Level 3 . The Court bases this finding upon the underlying facts of the instant crime. Specifically, the Court finds that Defendant used his age and alleged physical infirmity to lure a child into his home, whom he then sexually molested. The Court finds that Defendant's behavior warrants an upward departure to a Level 3, as Defendant is a high risk to re-offend.

In connection with the People's request for an upward departure, the Court reviewed a videotaped statement of the 10 year old victim, wherein the victim described the incident. The victim indicated that she initially went to the Defendant's home, alone, to help Defendant walk his dog. The victim indicated that on prior occasions, she and her father had helped "Louis" (the Defendant) walk his dog. When she arrived at the house, the victim noticed the dog outside. Defendant came to the door and asked the victim to come into his home, and that "if she could come in, she would be doing a real favor for him." According to the victim, she thought she was going into Defendant's home to get a leash to walk the dog. Instead, Defendant had the victim sit on his lap, at which time the Defendant rubbed the victim's "belly" and vagina. While the Defendant molested the victim, he attempted to distract her by talking about school, and telling her how big she was growing. At some point thereafter, Defendant directed the victim to go over to the couch, and to remove her pants and underwear. While on the couch, Defendant rubbed the victim's "tummy" and vagina. According to the victim, the Defendant inserted his finger into her vagina and moved his finger in a circular motion. The victim stated that she became uncomfortable, scared, and began to hurt. The victim cried and told Defendant to stop. According to the victim, Defendant said it would not hurt any more as he withdrew his finger from her vagina. The victim then got dressed, and went home. When she arrived home, the victim told her father what had occurred.

The Court notes that the Introducer's Memorandum in support of the Sex Offender Registration Act states that rapists recidivate at the rate of 7 to 35 percent; and, offenders who molest young girls recidivate at the rate of 13 to 40 percent. Those who recidivate may commit the second crime after a long interval without offense. The conclusion to be drawn from the various studies is that in the cases of sex offenders, as compared to other criminals, the [*4]propensity to commit crimes does not decrease over time. The Introducer's Memorandum indicates that protecting the public, especially children, from sex offenders is a primary governmental interest and registration of convicted sex offenders re-entering the community is a control that helps protect individuals from victimization.

In addition, the bill jacket for the Sex Offender Registration Act contains a letter to Michael Finnegan, then counsel for Governor Pataki, dated July 7, 1995, from Daniel L. Feldman, a member of the Assembly and co-sponsor of the bill. The letter reports that sex offenders are significantly more likely than other repeat offenders to re-offend, and their recidivism rate does not decline with age. Furthermore, many commit the second crime after a long interval without offense. A fifteen (15) year study by the California Department of Justice of one thousand three hundred and sixty- two sex offenders, found that nearly 20 percent were rearrested for a subsequent sexual offense. Rapists had a 25 percent rate for subsequent sexual offense. It was further found that sex offenders were five times as likely as other violent offenders, and more than six times as likely as all types of offenders, to re-offend by engaging in a sex offense. Sex offenders who prey upon children represent a serious threat to the American family and to the very fabric of our society.

The Feldman letter further notes that, according to a National Institute of Mental Health Study by Dr. Gene Abel at Emory University, the typical offender is a male, begins molesting by age 15, engages in a variety of deviant behavior, and molests an average of 117 youngsters. Furthermore, it was reported that those who attack young boys, molest an average of 281 boys.

The Court notes that an issue was raised at the hearing regarding whether the People presented sufficient evidence for the Court to consider an upward departure. The Court finds that sufficient evidence was presented during the hearing warranting an upward departure to Level 3. By analogy, in charging a jury in a criminal matter with respect to a jury finding, or rendering a verdict of guilty in a criminal case, a basic instruction is given to jurors, as follows: in evaluating the evidence you may consider any fact that is proven and any inference which may be drawn naturally, reasonably, and logically from such fact. In this case, there were a number of facts that were established, and a number of inferences that may be drawn therefrom, which in turn warrant an upward departure to Level 3.

Based upon the evidence adduced at the hearing, it is clear that Defendant used his age and infirmity to lure a child into his home for the purposes of sexually molesting her.[FN1]

The Court finds that the guidelines do not adequately take into account a Defendant who may use his age and an alleged infirmity to gain access to a victim. In this instance, Defendant clearly used his age and physical condition to disarm the victim. Defendant's behavior makes him a great danger to society. Indeed, there was no evidence adduced during the hearing that Defendant's age or infirmity would minimize his risk to re-offend. In fact, while Defendant was too ill to travel to court as was specified in a single letter sent to the Court, there was no evidence presented whatsoever regarding the Defendant's physical and/or mental condition. The Court must note that Defendant was approximately 76 at the time of the original offense. He was [*5]elderly and in poor health, according to the pre-sentence report, when he committed the offense, and when he was sent to prison in 2003. Despite expectations to the contrary, Defendant survived state prison. He is now being released into society with no evidence that his physical condition is any worse than it was in 2003, when he molested the victim. The only reasonable inference that can be drawn from the evidence presented is that Defendant used his age and illness to gain access to a young child whom he then molested.

In addition, since Defendant will be living in a nursing home, where he would have access to children, he would have the ability to seek aid from a child by using his age and poor health as an excuse to groom a victim for the purposes of satisfying his deviant sexual urges.

Defendant is someone who poses a high risk to society because he used his age and infirmity to lure a child into his home, whom he then sexually molested. The risk assessment instrument simply does not take into account a defendant who uses his advanced age and physical infirmity as a modus operandi; nor does it take into account any modus operandi which, by its nature is one that demonstrates a high risk of re-offense. Defendant's modus operandi is to disarm his victim using his age and poor health, a factor not consider in the risk assessment instrument.[FN2]

Accordingly, based upon the foregoing, the Court finds that the facts and circumstances of this matter warrant an upward departure to a Level 3.

Accordingly, Defendant is classified as a Level 3 sex offender under New York's Sex Offender Registration Act, based upon a score of 90 points and an upward departure to Level 3. In addition, Defendant is classified as a sexually violent offender. NY CORRECT. Law §168-a(3)(a)(i); NY PENAL Law §130.67. Defendant therefore is directed to comply with the registration provisions implicated by this Decision and Order, including but not limited to, those outlined in the Sex Offender Registration Act contained in Article 6-c of the New York State Corrections Law.

The foregoing constitutes the Decision and Order of the Court.

Dated: White Plains, New York

April 18, 2006_____________________

RORY J. BELLANTONI

COUNTY COURT JUDGE

APPEARANCES OF COUNSEL: Footnotes

Footnote 1:Given the totality of evidence before the Court, it is clear that the 10 year old victim was an impressionable young girl with a history of service to her community, and others. The Defendant clearly preyed upon the victim by taking advantage of her willingness to come to the aid of a "fragile and infirm old man."

Footnote 2:Indeed, the commentary to the guidelines specifically identifies advanced age or debilitating illness as factors not otherwise taken into account by the risk assessment instrument, albeit in the context of a downward departure.