People v Puner

[*1] People v Puner 2006 NY Slip Op 50679(U) [11 Misc 3d 1083(A)] Decided on April 20, 2006 Westchester County Ct Zambelli, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2006
Westchester County Ct

THE PEOPLE OF THE STATE OF NEW YORK

against

NICHOLAS PUNER, Defendant.



1506-99



Green & Willstatter

Attorney for Defendant

200 Mamaroneck Avenue, Suite 403

White Plains, NY 10601

Attn: Theodore S. Green, Esq.

Hon. Janet DiFiore

District Attorney, Westchester County

111 Dr. Martin Luther King Jr. Blvd.

White Plains, New York 10601 Attn: Frederic Green, Esq.

Assistant District Attorney

Barbara G. Zambelli, J.

On June 2, 2000, the defendant pled guilty to sodomy in the third degree (two counts). He was approximately 56 years old when he victimized two 15-year-old boys he met in an America Online internet chat room named "Westchester M4M." On September 7, 2000, he was sentenced to 60 days in jail and five years probation, and designated a level three sex offender pursuant to the Sex Offender Registration Act (SORA). The sentencing court found clear and convincing evidence to support the assessment of 115 points to the defendant as follows: 25 points for sexual intercourse, deviate intercourse, or aggravated sexual abuse; 30 points for three or more victims; 20 points for a continuing course of sexual misconduct; 20 points for the age of the victims; and 20 points because his victim's were strangers to him.[FN1]

At sentencing, the defendant promised the court that he took full responsibility for his crimes and that he would never again victimize a child. Then, while on probation, he engaged in what he described as "pornographic" internet communications with someone he believed was a minor. According to a probation violation report, these conversations began on January 26, 2001, less than five months after the defendant was sentenced and adjudicated a level 3 sex offender.

The record contains a transcript of the instant messaging conversations which resulted in the defendant's violation of probation. An undercover investigator posing as a 14-year-old boy confused about his sexuality spoke with the defendant. As the conversations progressed, the defendant talked about oral sex, masturbation and penis size. He offered encouragement as the investigator simulated masturbation, made no attempt to cut off communications, and even changed his internet screen name to ensure that the conversations would remain a secret. These conversations occurred at a time when the defendant was attending a sexual offender treatment program, confirming a psychologist's [*2]earlier assessment that the defendant saw little value to the treatment.

On April 2, 2001, the defendant was resentenced as a result of the violation of probation to 16 month to four years imprisonment. He remained in prison until February 6, 2004, and he was discharged from parole supervision on January 17, 2005. By notice dated September 23, 2005, the defendant petitioned the Court to modify his SORA risk assessment level from Level 3 to Level 2. He argues that his classification should be lowered because there is a low risk that he will reoffend, and he does not present a threat to public safety. In support, he relies on his favorable record while in prison; a favorable recommendation from his parole officer; a letter from Thomas F. Hopkins, Ph.D., a psychologist he was referred to by the Division of Parole; a letter from David J. Gallina, M.D., a psychiatrist hired by the defendant, and a letter from Richard B. Krueger, M.D., a psychiatrist who diagnosed the defendant as a pedophile in 2001 and has now revised his opinion. Pursuant to Correction Law § 168-o[4], this Court obtained an updated recommendation from the Board of Examiners of Sex Offenders (hereinafter "the Board"), and set this matter down for a hearing on the petition. The hearing was held on March 7, 2006. The defendant offered the testimony of one expert witness, and the People submitted documentary evidence in opposition to the modification.

The defendant is a Harvard Law graduate who was married for 35 years before his conviction contributed to the end of his marriage. Prior to his conviction, he was a closeted-homosexual who engaged in occasional extramarital sexual encounters while also attempting to maintain a normal family life. According to the affidavit in support of his petition, he claims that it was "atypical" for him to victimize adolescent boys, and the criminal conduct for which he was convicted was facilitated by the internet. Nevertheless, he blames only himself for his crimes. He also claims that his violation of probation resulted from his "arrogance in believing that [he] would not reoffend." While in prison, subsequent to his parole violation, he participated in a sex offender counseling program, which he claims "helped [him] understand that [he] could not rationalize or justify [his] offense, nor could [he] blame [his] victims."

The defendant did not testify at the hearing, and he offered the testimony of only one witness, his treating psychologist. In his affidavit in support of the petition, the psychologist opined that the defendant poses a low risk of reoffense. According to the psychologist, the defendant committed his crimes because his clandestine lifestyle led him to frequent internet chat rooms, and now that the defendant no longer has to lead such a life, he is able to accept responsibility for his crimes and move on. His letter also concluded that the risk that the defendant would reoffend was further reduced because his unlawful behavior did not arise from an "impulse control disorder" and was not emotionally driven; and the defendant was now aware that reoffense could lead to further imprisonment.

At the hearing, the psychologist testified that he had treated about 300 sex offenders, 15% of whom had victimized adolescents. However, he admitted to having no formal training in assessing the risk of reoffense behavior by sexual offenders. Any training he had received in treating sexual offenders had been purely clinical. His assessment of the defendant was based solely on his 80 hours of clinical interviews with the defendant over a 16 month period. He did not use any objective tests, or refer to any prior assessment of the defendant made by other mental health professionals. Based on this testimony, in response to the People's objection, this Court did not permit the psychologist to give his opinion of the degree of risk that the defendant would reoffend.

On cross-examination, it became apparent that the witness was completely unfamiliar with [*3]the defendant's past behavior and treatments. He based his assessment on the defendant's admission that he had abused only two victims. He was completely unaware that clear and convincing evidence was presented to the sentencing court that the defendant had abused a third victim. He also did not review a report of a clinical polygraph examination conducted on the defendant. According to that report, before the polygraph test was administered, the defendant admitted to the examiner that he had sexual contact with 10 minors under 18 years of age after his 30th birthday, and he had encouraged at least three other minors to masturbate during telephone conversations. Finally, although the witness thought that the defendant was unlikely to reoffend because he would not want to expose himself to reimprisonment, he was unaware that the defendant had been to prison prior to violating probation.

A departure from the presumptive risk level is warranted only where "there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [1997 ed]). The commentary to the guidelines states that "[c]ircumstances that may warrant a departure cannot, by their very nature, be comprehensively listed in advance." The defendant bears the burden of proving the facts supporting the requested modification by clear and convincing evidence (see Correction Law § 168-o[2]; People v. Dexter, 21 AD3d 403).

In the instant case, the defendant has failed to meet this burden. His presumptive level 3 risk assessment is based completely on risk factors associated with his offense. Consequently, his record since he violated probation, standing alone, will not change his risk assessment level. In fact, now that he has been discharged from parole supervision, if he were to be re-evaluated under the sex offender guidelines at this time, he would be assessed another 15 points because he is living in the community with "no official supervision." (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [1997 ed][Factor 14, "Supervision"]). What the guidelines do not directly address is a sex offender's mental health or response to treatment. However, they do recognize that "response to treatment, if exceptional, can be the basis for a downward departure" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 16 [1997 ed]).

The defendant has failed to demonstrate that his response to treatment has been significant enough to warrant a downward departure in his risk level. In light of the opposing evidence in the record, this Court draws a negative inference against the defendant due to his failure to testify (see Matter of Joseph C., 297 AD2d 673; Matter of Jenny N., 262 AD2d 951; Doe v. Pataki, 120 F3d 1263). His credibility cannot be evaluated by merely studying his self-serving affidavit (see Mortimer v. Lynch, 119 AD2d 558). The defendant's expert psychologist failed to support his underlying assumption that the defendant poses a minimal risk to the community (see Giraldo v. Mandanici, 24 AD3d 419). Although he agreed with the axiom that the best way to predict future behavior is to assess past behavior, he failed to fully examine the defendant's past behavior or response to treatment. His opinion was based solely on the defendant's purely subjective claim that he is no longer a threat (see Lynch v. Lorkowski,12 AD3d 489, 490; Ekorb Associates v. State, 41 AD2d 794). Accordingly, his opinion is not supported by the facts in the record (see Glorioso v. Schnabel, 253 AD2d 787).

For example, the witness never read the findings of David L. Pogge, Ph.D., the director of Psychology for the Four Winds Hospital. In a report submitted by the People, Dr. Pogge concluded, based on a number of objective tests, that the defendant lacks candor, his emotions dominate his perception, and he is able to create an illusion that he is "highly rational, intellectually grounded [*4]individual." In fact, he warned that no evaluation of the defendant by any expert should be considered conclusive if it was based upon the defendant's statements at interviews. The witness' failure to address Dr. Pogge's opinion while formulating his own rendered his opinion speculative at best (see Giraldo v. Mandanici, 24 AD3d 419, 420).

Two psychiatrists hired by the defendant submitted unsworn letters in support of the petition. The letters have not been accorded any weight by the Court. One psychiatrist's retraction of his pedofile diagnosis is insignificant under the circumstances of this case. According to two of the defendant's experts, the title "pedophile" is reserved for sex offenders who victimize prepubescent children. While there is no evidence that the defendant has ever preyed on prepubescent children, he does have a history of victimizing post-pubescent males who have not yet reached the age of consent. In the eyes of the law, the protection of these children does not end at puberty.

According to the updated recommendation from the Board, there is a significant risk of recidivism when sex offenders have a history of preying on same sex victims. There is nothing in the record before this Court to demonstrate that the defendant has become an exception to the Board's general findings. In the Board's view, the petitioner's high degree of intelligence makes him more persuasive to post-pubescent adolescents. In fact, even one of his own experts opines that he prefers to "sexual act out" by persuasion and manipulation. The petitioner failed to address the Board's concerns before this Court or with his own experts. Considering that he is now living out in the community unsupervised, his level 3 classification is as appropriate today as when he was originally sentenced.

For all the reasons stated above, the petition is dismissed.

This decision constitutes the Order and Judgment of the Court.

Dated:White Plains, New York

April 20,2006

__/s/ Barbara G. Zambelli ______

BARBARA GUNTHER ZAMBELLI

COUNTY COURT JUDGE

Donna Minort,

Chief Clerk [*5]

Elizabeth Pace,

Deputy Chief Clerk Footnotes

Footnote 1:This case was edited for publication.