People v Oliver

[*1] People v Oliver 2009 NY Slip Op 52847(U) Decided on December 14, 2009 Supreme Court, Cayuga County Dollinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2009
Supreme Court, Cayuga County

The People of the State of New York

against

Santos Oliver, Defendant.



XXXXX



For the People of State of New York

Jon E. Budelmann, Esq

Cayuga County District Attorney

By: Heather M. DeStafano, Esq

For the Defendant Santos Oliver

Nancy Jane Murphy, Esq.

Ithaca, New York

Richard A. Dollinger, J.

In this proceeding, defendant challenges the recommendation that he is a Level 3 sex offender under New York's Sex Offender Registration Act ("SORA").

On September 2, 2009 the defendant pled guilty to Sexual Abuse in the Second Degree, sexual contact with an individual greater than 17 incapable of consent. The crime is a Class A misdemeanor. He was sentenced to time served and released without supervision on the same day of his plea/conviction.

Thereafter, this SORA proceeding was commenced. The Cayuga County District Attorney's office presented a risk assessment instrument ("RAI"), prepared by the New York State Board of Examiners of Sex Offenders ("the Board") and based on the Board's Risk Assessment Guidelines and Commentary, 2006 ("the Guidelines"). Under the RAI, the defendant was assessed 145 points on the 15-category instrument and, based on the accumulated points, classified as a Level 3 offender.

The Allegations in the Case Summary

The RAI was accompanied by a case summary, which was based on the "inmate's file, which may include but is not limited to the pre-sentence investigation, prior criminal history and post-offence behavior." Case Summary.

The case summary alleges that the 32-year-old defendant was in a bar with a 25- year-old female. Neither person knew the other until the night of the crime. They [*2]met at a bar, drank, talked and then went to another bar. The case summary alleges that defendant was intoxicated but makes no mention of the condition of the victim. However, the victim "began to feel ill" and entered the ladies room. Later, the defendant entered that ladies room, held her hair and rubbed her back as she continued to vomit. The case summary alleges that he then fondled her breasts and "she repeatedly told him to stop" and then "he pinned her to the side of the toilet and stall wall, lifted her up and pulled down her pants and removed her tampon and then penetrated her vagina with his penis." The case summary alleges that she was "screaming for him to stop" and "yelling for help." After some time, two women came to her aid and "forced him to leave." Id.

The case summary also alleges that defendant, when later confronted by a DNA test, admitted that he touched the victim's vagina with his penis, but, "noted that it was consensual." It then makes reference to "some suggestion that the victim was drugged," as a drug-facilitated sexual assault kit was administered and victim was noted to be "far more intoxicated than she should have been based on the number of drinks she had had." Id. The defendant was indicted for Rape in the first degree and sexual abuse in the first degree and, according to the summary, "will be scored accordingly."

The case summary then details the defendant's criminal history. He was arrested in 1993, at age 16, for Burglary in the Second Degree, but there is no disposition noted in the case summary. There is a claim in the case summary that "he was placed on probation from February 1994 to February 1997 in both Tompkins and Cayuga Counties" but there is no proof before this Court of the reasons for probation or any conviction to sustain the sentence. The case summary also alleges that he was convicted of criminal mischief twice in 1995 and sentenced to probation for the second offense. Critically, he was charged — but never indicted — with Rape in the Second Degree in 1995 and eventually convicted of Sexual Misconduct in April 1998.

After those convictions, the case summary alleges that the defendant was convicted in 1999 of Driving While Ability Impaired and in 2009 for Driving While Intoxicated and sentenced to 89 days incarceration.

Based on these determinations, the case summary scored defendant as follows:

-25 points for sexual intercourse with the victim;

-10 points for using "forcible compulsion" against the victim;

-20 points because the victim suffered from mental disability or incapacity or from physical helplessness;

-10 points because the defendant was less than 20 at the time of first act of sexual misconduct;

-30 points because he had a prior misdemeanor sex offense;

-15 points because of he had history of drug or alcohol abuse;

-15 points because he was released without supervision.

The point total of 145 in the RAI confirmed that he was a Level 3 offender.

In the hearing before this Court, defense counsel and district attorney argued over whether the government had provided clear and compelling evidence that: (1) forcible compulsion was used against this victim, (2) intercourse occurred during the crime, (3) the victim was "physically helpless" at the time of the crime, (4) the victim was a stranger to the defendant, and finally (5) whether the defendant's prior convictions for [*3]alcohol-related driving offenses were sufficient to justify a finding of drug and alcohol abuse.

SORA and the Standard of Proof

At a SORA hearing, the People bear the burden of establishing the factors supporting the proposed risk level by clear and convincing evidence. NY Correction Law §168-n(3); People v. Dominie, 43 AD3d 589 (4th Dep't 2007); People v. LaRock, 45 AD3d 1121 (3d Dep't 2007).

The clear and convincing standard acts requires a "high order of proof" and acts as a "weighty caution upon the minds of judges and forbids relief whenever the evidence is loose, equivocal or contradictory." Backer Mgt Crop. V. Acme Quilting Co., 46 NY2d 211 (1978). This Court must, before drawing any conclusions, find it "highly probable" that an alleged activity occurred. People v. v. Dominie, 43 AD3d 589 (4th Dep't 2007).

The statute details that case summaries, prepared by the Board, and "reliable hearsay" can be considered by this Court in determining whether the government has met its burden of proof. NY Correction Law § 168-k (2); § 168-n (3). Furthermore, facts proven at trial or at a plea are deemed established by clear and convincing evidence. People v. Arotin, 19 AD3d 845, 847 (3d Dep't 2005). The responsibility for the final assessment of factor values and the overall determination of a defendant's sex offender level lies with the court. While recommendations of factor assessments by the Board may be helpful, this court is not constrained by those assertions. People v. Dorato, 291 AD2d 580 (3d Dept 2002); Matter of VanDover v. Czajka, 276 AD2d 945 (3d Dept 2000); Matter of New York State Bd. of Examiners of Sex Offenders v. Ransom, 249 AD2d 891 (4th Dept 1998).

If the hearsay proof is equivocal or inconsistent and not substantiated by other proof, the clear and convincing standard is not met, then this Court may not uphold the Board's determination or point assessment under the Guidelines.

Legal Status of the RAI Analysis and the Guidelines

In evaluating this case, this Court notes that the Guideline approach to predicting sexual offender recidivism has recently been critiqued as outdated and frozen in time. See People v. Santos, 25 Misc 3d 1212(A) (2009). A brief examination of the scholarly support for the Guidelines lends credence to this criticism. The scholarly articles which underlie the RAI date from the mid-1980s to the mid-1990s. This lack of updated analysis raises a serious and on-going question regarding the weight to be assigned to the Board's institutional role in defining and weighing, on a comparative basis, the various factors relevant to assessing the risk of reoffense by any individual defendant. As commanded by the Corrections Law, the Board in this case should perform an important task for the courts: an evaluation and recommendation of the critical and pertinent factors that most accurately predict a defendant's risk of recidivism. In implementing this legislative scheme with respect to sex offenders, the Board should perform an administrative task similar to role the federal sentencing commission providers for judges sentencing federal offenders: it should provide the scholarly justification for classifying certain offenders based on "empirical data and national experience, guided by a professional staff with appropriate expertise." See Kimbrough [*4]v. Uinted States, 552 US 85 [2007] citing United States v. Pruitt, 502 F.3d 1154, 1171 [2007])(commenting on the institutional role of the federal Sentencing Guideline Commission).

In this case, for the reasons that follow, this Court questions whether the Board, in its translation of national experience data and empirical data to this particular case is entitled to the apparently substantial deference that the Correction Law accords . As a consequence, this Court is reluctant to rigidly adhere to the Guidelines and the commentary incorporated therein, as evidenced in the RAI and case summary presented in this case

First, this Court notes that the RAI before this Court does not appear to fully accord with the legislative directive for risk assessment analysis in the Correction Law. The statute specifically directs the Board to include in the assessment "whether psychological or psychiatric profiles indicate a risk of recidivism." NY Correction Law §168-l(5)(e). The statute also indicates that "the sex offender's response to treatment," shall be included in the Guidelines. NY Correction Law §168-l(5)(f). Curiously, the Guidelines before this Court make no reference to either of these criteria. The Guidelines state that the Board "opted to create an objective assessment instrument that would provide a risk level combining risk of reoffense and danger posed by a sex offender" and "as required by the Act, the instrument includes factors relating to the offender's current offense, his criminal history, his post-offense behavior and his planned release environment." The Guidelines ignore subdivisions (e) and (f) and do not permit this Court to consider either of those factors in calculating this defendant's risk of recidivism.

Consistent with the failure to include these factors in the Guidelines, the RAI before the Court makes no reference to any psychological profile of the defendant, nor any reference to treatment. There is no score allocated for either variable, even though the statute specifically directs the Board to consider these factors in the assessment instrument. In addition, there is no evidence of any psychological or psychiatric evaluation of this defendant before the Court, despite what appears to be a legislative command that such an evaluation be one of the tools for this Court to evaluate in determining the risk of recidivism.[FN1] As the Court in Santos noted, the task of [*5]determining the risk of recidivism is "even more difficult in the typical SORA risk assessment, like the one conducted here, where there has been no individualized psychiatric assessment of the offender." Santos, supra at 30.

Second, there is an avalanche of new data — published after the Guidelines were promulgated — involving sex offenders and their recidivism rates in the wake of the enactment of sex offender registry laws nationwide. The New York State Division of Probation and Correctional Alternatives has published several bulletins which address the methods of calculating recidivism in this population. NYS DPCA Research Bulletin: Sex Offender Populations, Recidivism and Actuarial Assessment, 2007 ("Bulletin I"); NYS DPCA Research Bulletin; Clinical and Structured Assessments of Sex Offenders, 2007 ("Bulletin II"). These studies, conducted by a coordinate branch of state government, contain scores of updated articles and analyses of the predictive tools and approaches to sex offender assessment, including updated articles from authors whose earlier works are cited in the Guidelines. Compare McGrath, R., "Sex Offenders Risk Assessment and Disposition Planning: A Review of Empirical and Clinical Findings," International Journal of Offender Therapy and Comparative Criminology, 35(4) (1991) (cited in the Guidelines Bibliography) with McGrath & Cumming,"Sex Offender Treatment Needs and Progress Scale Manual, Research Version," (2003) (cited in Bulletin II); see also Quinsey, Lalumiere, Rice, & Harris, "Predicting Sexual Offenders", in J.C. Campbell, Assessing Dangerousness: Violence by Sexual Offenders, Batterers and Child Abusers (1995) (cited in the Guidelines) and Quinsey, Harris, Rice, & Cormier, "Violent Offenders, Appraising and Managing Risk," American Psychological Association, Second Edition (2006) (cited in Bulletin II). Furthermore, the swirling debate over predictions of offender recidivism and the assessment tools that drive these determinations has already cropped up in the New York courts. In re Rossado, 25 Misc 3d 300 (2009) (results of widely used STATIC-99 actuarial risk assessment test were in admissible under the Frye standard).

Third, this Court understands that the validity of the Guidelines as a tool for determining sex offender recidivism is not before this Court. The defendant makes no such challenge and no New York court has determined that the RAI's analysis or the Board's Guidelines deprive a defendant of due process or any other statutory right. See People v. Santos, 2009 NY Mic LEXIS 2768 at 32-33; see also People v. Bligen, 33 AD3d 489 (1st Dep't 2006)(defendant failed to show that the factors on which the guidelines are based are unreliable indicators of the reoffense by a sex offender so that their use violates the sex offender's right to due process); People v. Barrow, 65 AD3d 942 (1st Dep't 2009). However, the state of scholarship in assessment of sex offenders, judicial concerns about the validity of assessment tools, the debate over the importance of clinical factors in evaluating recidivism risks, combined with the plethora of mistakes and omissions in the RAI in this case, caution this Court to intensively examine the facts [*6]and circumstances of this defendant before reaching any conclusions. As one expert, cited by the New York State Division of Probation and Correctional Alternatives, noted:

Ultimately, the relative superiority of one method [actuarial v. clinical] over another is highly dependent on the questions we are asking. If our primary concern deals with the aggregated long-term risk posed by a group of individuals, actuarial instruments almost certainly provide the most valid means of assessing the risk. If we are concerned with setting forth the relative probability that a particular individual will reoffend at some undetermined point in the future, actuarial instruments provide a moderate degree of accuracy, albeit one prone to errors.

Harris, "Risk Assessment and Sex Offender Community Supervision: A Context-Specific Framework," Federal Probation, 70(2) (2006) (cited in Bulletin I). This Court notes that the United States Supreme Court, in another context, advised that it has been "uniform and constant in [the federal] judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometime mitigate, sometimes magnify, the crime and punishment to ensue." Koon v. United States, 518 US 81, 112 (1996).

Guided by that obligation to conduct that "unique study" and the Guidelines encouragement to "eschew per se rules" and use an "individualized approach," (Guidelines, p. 2), this Court now evaluates the proof presented by the government and the defendant's point allocation.

The Scope of the Proof and the Credibility of the Case Summary and RAI In determining the application of these principles to this case, this Court has considered: the videotape of the defendant's confession, certified conviction records, the case summary and RAI prepared by the Board, the disclosure materials provided by the District Attorney during the criminal process, a decision on motions during the criminal process dated May 22, 2009, two sets of grand jury minutes, correspondence between counsel, motions by the defendant's counsel, and the People's motion response. In addition, this Court has reviewed the Guidelines and numerous periodicals referenced in that document in evaluating the assertions in the RAI.

Initially, the District Attorney's office argues that the RAI, based on the principles articulated in the Guidelines, is entitled to some probative impact on this Court. However, based on a simple reading of the document and a comparison of undisputed facts, this Court questions whether the RAI before the Court is entitled to any weight because it is riddled with errors, misstatements, and misleading information.

For example, the RAI states that it was "based on a review of inmate's file" including the "pre-sentence investigation" ("PSI") report. However, the Board never examined the PSI in this case as none was prepared for this defendant. The case summary, after describing the incident, also makes reference to the "suggestion" that the victim was drugged because a drug-facilitated sexual assault kit was administered the following morning after the crime. A closer review of the file records indicate that there is no evidence that the victim was "drugged." The victim never even suggested she was drugged. There is abundant evidence, including the admission by the defendant, that the victim was "intoxicated," but no proof that the victim was drugged. The inclusion of this unsupported fact casts doubt on the accuracy of the summary and [*7]the thoroughness of its drafters.

The report also contains an unverifiable assertion that the victim was "far more intoxicated than she should have been based on the number of drinks that she had had." In scouring the record, this Court can find no evidence of the exact extent of the victim's intoxication. The victim vomited prior to the crime, presumably because of excess alcohol intake. It is undisputed that both the defendant and the victim were intoxicated. There is no evidence that the defendant encouraged alcohol consumption by the victim and no evidence that he even purchased alcohol for the victim. There are no results of blood tests or any chemical analysis of either the victim or the defendant. There are no specific eyewitness accounts of the extent of intoxication in the proof before the Court, including the grand jury minutes. The victim was not interviewed by police until the day after the incident, when there was apparently no evidence of any lingering intoxication. This highly prejudicial assertion that the victim was "far more intoxicated than she should have been" is unsupported by any facts in the record.

The RAI also claims that the defendant was indicted for rape, based on the physical helplessness of the victim and Sexual Abuse in the First Degree (incapable of consent) and "would be scored accordingly." In making this assertion as a matter of fact, the case summary completely ignores the actual circumstances of the prosecution of this defendant. The defendant was originally indicted for six felonies: two counts of Rape in the First Degree, (including one count of rape when the victim was physically helpless); two counts of Sexual Abuse in the First Degree because he touched the victim's breasts either by force or when she incapable of consent; and two further charges of Sex Abuse in the First Degree because he touched the vagina of the victim, either by use of force or when the victim was incapable of consent.

However, after arraignment, the defendant moved before County Court to dismiss portions of the indictment. Judge Thomas G. Leone, in an opinion dated May 29, 2009, found the evidence was legally insufficient to support any indictment based on an allegation of "physical helplessness." The Court reduced the second count of rape to a charge of Sexual Misconduct (a Class A misdemeanor) and reduced the two counts of Sexual Abuse in the First Degree, to misdemeanor charges of Sex Abuse in the Third Degree, based on the alleged physical helplessness of the victim. NY Penal Law §130.55. The RAI makes no reference to Judge Leone's decision to scale back the indictment and never acknowledges that the crimes alleged in the indictment, based on physical helplessness, could not be proven. This critical omission, directly related to the proof involving the underlying crime, raises a serious question of whether any portion of the case summary is entitled to any weight before this Court.

The mistakes in the case summary continue in the description of the defendant's criminal history. Critically, the summary indicates that defendant was convicted of Sexual Misconduct in April 1998 and was sentenced to five years probation. The Court conducted its own review to determine the accuracy of the criminal history. A criminal history report from the New York State Division of Criminal Justice ("NSIS") and further investigation confirmed that the defendant, although charged with rape in 1995, pled guilty to Sexual Misconduct in 1998, three years later. However, even those facts appear to be challenged by other documents. A certified conviction from the Tompkins County Clerk's Office indicates that the defendant pled guilty to Criminal Mischief with [*8]intent to cause property damage in the Town of Brutus in 1995 and was sentenced to three years probation. On August 18, 1998, the defendant's probation was revoked for technical violations. A certificate of conviction from the same county court, offered by the prosecution, indicates that the defendant "admitted violations of probation" before the Brutus Town Court and was sentenced on the violation of probation on April 24, 1998. The NSIS makes no reference to any sentence for a violation of probation; instead., it indicates that the defendant pled guilty on April 24, 1998 and was sentenced to five months in jail. The government's documents contradict each other: one suggests that defendant pled guilty in November 1995 and the second suggest the guilty plea occurred in April 1998.

Based on the extensive mistakes and misstatements in the case summary, this Court declines to accord any significant weight to these hearsay assertions in resolving the issues under SORA that are currently before the Court. This Court can credit "reliable hearsay," but, when evaluated in its entirety, the allegations in the case summary do not meet that test. The numerous errors and omissions cast substantial doubt on the reliability of any allegations in the case summary. The Court, therefore, declines to accord any weight to the case summary and instead. will examine the entire record in this case for clear and convincing evidence that the factors alleged in the RAI are justified.

1.Use of Violence against the Victim

The defendant challenges the allocation of 10 points for the use of forcible compulsion which, according to the Guidelines, is derived from Section 130.00(8) of the Penal Law. Therefore, this Court must find clear and convincing evidence that the defendant used "actual physical force" or that threats by the defendant caused the victim to fear immediate physical injury. NY Penal Law §130.00(8)(b). The case summary alleges that the defendant "pinned the victim down to the side of the toilet" and then removed her pants and pulled her underwear down, while she repeatedly yelled for help.

Initially, the Court notes that there is no evidence of any threats against the victim. She never testified that she was afraid of the defendant or in fear of any prior or future consequences. Therefore, the only basis for a finding of forcible compulsion would be that the defendant used "actual physical force" against his victim.

In evaluating the defendant's conduct, the Court refuses to credit any portion of the defendant's account of his conduct because it is unreliable. When first visited by the police, the defendant gave a bland account of the events, denying removing the victim's clothes and suggesting he never engaged in any sexual conduct. When being taken to the police station, he changed the story, admitting that he had. engaged in sexual contact and, eventually, when confronted with a DNA test, he changed his version again, admitting that his penis touched her vagina, but denying penetration. This ever-changing rendition of the defendant's conduct on the night of crime is not credible.

However, the lack of defendant's candor does not equate with the People meeting their burden to establish "forcible compulsion" by clear and convincing evidence. In evaluating the victim's testimony, there is other evidence that is probative on what occurred in the ladies room. There is no evidence in this record of any physical [*9]harm to the victim. In this regard, the Court notes that the officer who interrogated the defendant in the videotape repeatedly tells the defendant that the victim was not hurt or harmed. The hospital records show no evidence of any force against the victim: there is no evidence of bruising, laceration, or other evidence of physical restraint. There is no evidence of any genital injury in this record. People v. Bailey, 252 AD2d 815 (3d Dep't 1998) (medical evidence of bruising of genitalia, disparity in size and age and testimony that victim was "afraid" of defendant were sufficient to infer forcible compulsion).

This Court acknowledges that forcible compulsion is not synonymous with violence and compulsion can be found even if no direct physical force is used in the underlying incident. People v. Peraza, 288 AD2d 689 (3d Dep't 2001). However, in this instance, because of the lack of previous contact between the defendant and the victim, there is no evidence of prior history that would give rise to an implied threat of force against this victim. People v. Bailey, 252 AD2d 815 (3d Dep't 1998).

In addition, victim's account of the crime is at times, equivocal and not substantiated by other proof. First, the victim repeatedly stated that she "danced alone" before entering the ladies room and that there was no physical contact between them prior to entering the stall. The bartender testified that he observed the victim and the defendant "dancing like they had known each other for a long time." In his written statement to the investigating officer, the bartender described them as "hugging and kissing."

While victim stated that the defendant removed her panties and underwear, she never stated that he used any force in doing so. See People v. Garcia, 13 AD3d 818 (3d Dep't 2004)(using physical force to remove clothing was a fact from which forcible compulsion could be inferred). The victim also stated, in a statement given to the investigating officer, that she removed her tampon. The statement also contains a confusing statement by the victim that "6-7 women came into the ladies room while the rape was occurring" and no one helped her. The investigating officer was unable to obtain any corroboration of this fact.

The eye witness who entered the stall offered a different version of events. The eyewitness never heard the victim yell, even though she entered the ladies room on several occasions. She described visits to the ladies room, in which she saw the victim's legs in the stall but added that "it was outrageously quiet" while the victim — and apparently the defendant — were in there. When she opened the stall door, the eyewitness said that the victim had. her pants on and she described the victim as "dialing her cell phone" in an attempt to call someone. The victim never mentions a cell phone and claims that when the intervener appeared, the defendant was in the midst of the sexual assault.

The bartender testified that he also entered the stall and observed the defendant and victim. He said that the victim had her "pants down to her knees and her underwear were about halfway down" and that the defendant was fully clothed. In addition, the bartender testified before the Grand Jury that if someone was yelling loudly from the ladies room, the patrons of the bar would have heard it even if the nearby jukebox was on.

Based on these facts, and when balanced against other versions of the incident [*10]from eyewitnesses, the victim's testimony regarding the use of force is, at best, equivocal and unsubstantiated.

While this Court is aware that the defendant does not get to relitigate his plea, the defendant, in his plea colloquy, did not ad.mit using any "physical force" against the victim. The defendant plead.ed guilty to Sexual Abuse in the Second Degree, admitting that the victim was incapable of consent by reason of some factor other than being less than 17 years old. See Plea Colloquy in People v. Santos, Indictment No. 2008-198, September 2, 2009, p. 5. The transcript indicates:

THE COURT:August 16, 2008, Cayuga County, sir, did you subject another person to sexual contact when they were incapable of consenting by reason of something other than being less than 17?

THE DEFENDANT: Yes, sir.

THE COURT:Apparently illness or something, I don't know. . . . Is that about right?

THE DEFENDANT: Yes, sir.

THE COURT:How do you plead then to sexual abuse, 2d degree, sir?

THE DEFENDANT:Guilty.

The plea to this charge does not involve an admission of any physical force. During the colloquy, the defendant never admitted that he removed the victim's panties or underwear. He did admit that he had "sexual contact" with the victim and admitted that she was incapable of consenting to sexual contact at that moment.

Certainly, the defendant's plea colloquy does not suggest that any "forcible compulsion" was utilized against this victim.[FN2]Finally, many of the factors used to infer the use of forcible compulsion in comparable prosecutions have not been presented in this case. There is no evidence of the relative sizes and strengths of the defendant and victim. People v. Brown, 39 AD3d 886 (3d Dep't 2007). There is no evidence of a state of fear on the part of the victim. People v. Vasquez, 49 AD3d 1282 (4th Dep't 2008) (examining how relative size and strength of defendant and victim, and fear of being hurt can be factors in concluding that compulsion existed). [*11]

The Court is intensely mindful and, in fact, credits the victim's testimony, both to the arresting officer and the grand jury that defendant had his hands "all over her" in the bathroom, touched her breasts and buttocks and that the defendant removed her pants and underwear. In addition, this Court, as detailed later, finds clear and compelling evidence that the defendant did penetrate the victim in the bathroom. However, the fact that sexual contact undisputedly occurred does not establish that the defendant used physical force. People v. Chapman, 54 AD3d 507 (3d Dep't 2008).

In reaching this conclusion, the Court further notes that the fact that the District Attorney consented to the reduction in the charge to allow the defendant to plead guilty and the defendant continually maintained that no force was used. These factors also militate against a finding that forcible compulsion occurred. People v. Dominie, 42 AD3d 589 (3d Dep't 2007) (markedly differing accounts of the testimony in grand jury testimony, impact statement and statement to police, defendant's consistent denial of the use of force, dismissal of a rape charge based on an acknowledgment that the government could not prove force demonstrates that the record failed to establish forcible compulsion by clear and convincing evidence); People v. Hawkins, 18 AD3d 637 (2nd Dep't 2005). The assessment of 10 points on this factor has not been proven by clear and convincing evidence and can not be sustained.

2.Sexual Contact with the Victim

With respect to the sexual contact with the victim, the defendant suggests that while his penis "touched" the vagina of the victim, no sexual intercourse occurred. To buttress this claim, the defendant notes that none of the defendant's DNA was found in the victim and no semen was found either. However, despite these facts, the Court still finds clear and convincing evidence of sexual intercourse. The defendant's suggestion that his penis touched the victim but penetration did not occur is simply not credible, especially when the defendant admits that he touched her breasts and buttocks and assisted in removing her pants and underwear. The victim testified that penetration occurred and the Court credits this testimony. The allocation of 25 points for this risk factor is supported by clear and convincing evidence.

3.The Victim's Physical Helplessness

The defendant also contests a 20 point allocation which, according to the RAI, is premised on physical helplessness of the victim. "Physical helplessness" is defined in the Penal law as "unconscious or physically unable to communicate unwillingness to an act." NY Penal Law §130.00(7); People v. Sensourichanch, 290 AD2d 886(3d Dep't 2002).The People, in seeking this assessment, note that the defendant, in his plea colloquy, admitted that the victim was helpless by reason of "illness or something." The People argue that having made this admission, the defendant can not now seek to disavow his sworn admission that the victim was helpless.

However, as both a factual and legal matter, such an allocation is not established by clear and convincing evidence. First, there is undisputed evidence in the record before this Court that the victim was not physically helpless. She could talk during the entire episode. She talked to the defendant before and during the attack, according to her statements and testimony. She testified to the Grand Jury and gave a statement to investigators that she yelled to have the defendant stop his attack. During the entire episode, it is undisputed that she knew what was happening. There is undisputed [*12]evidence that she walked around inside the lad.ies room, prior to the crime, and she was coherent when she talked to women immediately after the crime and walked out of the ladies room. Therefore, there is no clear and convincing evidence that she was "physically helpless" or "unable to communicate an unwillingness" to the actions of the defendant before, during, and after the crime. The victim's own testimony does not establish that she was physically helpless at the time of the crime.

In addition, the decision by Judge Leone undercuts the assessment by the Board and the argument by the People. Judge Leone determined that there was insufficient proof to legally establish that the victim was either suffering from a mental incapacity or was physically helpless at the time of the crime. The Court notes that the Board never mentioned Judge Leone's determination in the case summary and never considered that the judge, ruling on pretrial motions, held that there was no proof to take to a jury on this risk factor. Because the proof supporting this factor is loose and equivocal at best — and contradictory at worst — the Court cannot find clear and convincing evidence to support this determination. The 20 points assessed in this category are deducted from the RAI in this case.

4.The Defendant as Stranger

The defendant also challenges the assessment of 20 points because the victim was a stranger to the defendant. On this score, the facts are largely undisputed.

The victim did not know the defendant until the night of the crime. The defendant mad e a similar admission: he had never met the victim until the night of the crime. The victim told police that she was introduced to the defendant by one of her roommates, who was a friend of the defendant. According to the victim's Grand Jury testimony, the victim and defendant spent nearly two hours together at the first bar. After her friends left that bar, she stayed behind with the defendant and another man. When the defendant said he was leaving to go another bar, the victim went with him. At the second bar, the defendant and victim talked together for some time, discussing common friends including the defendant's former girlfriend, before dancing on the dance floor. The victim said she "just danced by myself." The victim also told police that while she knew her assailant as "Sonny," she talked to the "former girlfriend" the following day to learn "Sonny's" real name.[FN3]

In the evidence before this Court, there is grand jury testimony and a statement from the bartender at the second bar which is probative on the issue of whether the victim and defendant were strangers. The bartender testified that the victim and defendant, in the bar for 45 minutes to an hour, were dancing together "like they had known each other for a long time." In a separate statement, the bartender told police the victim and defendant were hugging and kissing while on the dance floor.

Before reaching any conclusion based on these facts, a closer review of the Guidelines is necessary. The Guidelines state that a stranger is "not an actual acquaintance of the victim." The Guidelines use the example of an "a person living in the same apartment building if the relationship between the victim and offender is [*13]limited to their passing in the elevator or sharing an elevator." Guidelines, p. 12; People v. Gaines, 39 AD3d 1212 (4th Dep't 2007) (victim met defendant the night of the attack, did not know his legal name and apparently knew no other personal information about him); People v. O'Neal, 35 AD3d 302 (1st Dep't 2006) (no finding of stranger because defendant was a "good friend" of family member, and victim was able to identify him by name to the police); People v. Tejada, 51 AD3d 472 (1st Dep't 2008) (three Internet contacts did not rise to the level of acquaintanceship).

On this issue, the Guidelines appear to have a seeming inconsistency: the 32 year old drunken stranger sexually assaulting a 25 year old is penalized 20 points, but as the Guidelines indicate, " an uncle who offends his niece (no age specified) would not fall into this category." The Guidelines offer no explanation for this seeming disparity in assessment and contain only one footnoted explanation: "The need for community notification, however, is generally greater when the offender strikes at persons who do not know him well or who have sought out his professional care." The Guidelines cite no authority for this proposition.

This Court has reviewed several articles that clearly establish that strangers are significantly less likely to engage in sexual assault than some other classes of perpetrators including the ple set forth in the Guidelines — "the uncle who offends against his niece." See Ramos, "Stranger Danger Takes Back Seat to Family Feud," Miller-McCune Magazine (2008) (80 to 90 per cent of sex crimes against children are committed by a relative or acquaintance who has some prior relationship with the child); Juvenile Justice Bulletin, June 2000 (despite the stereotypes about stranger molesters and rapists, sex offenses are the crimes least likely to involve strangers as perpetrators); Levinson, "Sex offense recidivism, risk assessment and the Adam Walsh Act", Lynn University (myth of stranger danger persists despite that most sexual perpetrators are well known to their victims). In fact, numerous studies show that the "offending uncle" is many times more likely to repeat his conduct than a stranger, a factor that would suggest that community notification is more compelling when applied to the "uncle" — who would be assessed no points under this criteria — than the "stranger/acquaintance" present in this case. "No Easy Answers, Sex Offender Laws in the US," Human Rights Watch 2007 (community notification schemes reflect the assumption that children and adults are most at risk from strangers yet sexual violence against children as well as adults is overwhelmingly perpetrated by family members or acquaintances); "Towards More Effective Sex Offense Legislation", National Center of Institution and Alternatives, Inc., (March 2007) (Bureau of Justice Statistics reveal that only seven percent of sexual offenses were perpetrated by strangers).

Given the research that seemed to seriously question the link between the status as a stranger and the 20 point allocation in the RAI, this Court contacted the Board of Examiners and asked for copies of the two research articles cited in the Guidelines on this category. The Board produced one of the two articles: Schwartz, B., "Characteristics and Typologies of Sex Offenders" in B.K. Schwartz, and H.R. Cellini, (eds), The Sex Offender Corrections Treatment and Legal Practice, (New Jersey Civic Research Institute, 1995). The Court reviewed the article and in the description of "characteristics of sex offenders" and data from studies conducted as long ago as 1939 [*14]and 1950, the author lists age, race, ethnic origin, cognitive skills, lifestyle, mental status, sexuality, mental illness, alcoholism, personality disorders, prior sexual abuse, and parental relationships. The author never mentions the status of "stranger" as a factor in her review of the literature. The Court can find no explanation on why this chapter in this book would be cited as support for the conclusion that a stranger was as likely as a deceptive uncle to repeat a sexual offense.

The Guidelines also provide no direction in dealing with the other issue that dominates the relationship between victim and defendant in this case: their mutual intoxication. The record demonstrates that both victim and defendant consumed large amounts of alcohol in each other's presence. There is no evidence that the defendant encouraged or aided the victim's consumption. The relationship between the two prior to the crime — the conversation and dancing — occurred amidst progressive voluntary mutual intoxication. The alcohol also colors the victim's and the defendant's recollections: both accounts of the night are internally inconsistent, presumably because of the copious consumption of alcohol by both of them. Yet, the Guidelines provide no assistance in determining whether this alcohol fueled relationship is that of "a stranger" or "actual acquaintance."

Finally, the Guidelines appear to require an "objective" test for determining whether the victim and defendant were strangers. There is no suggestion in the Guidelines that if the victim perceived the defendant as a "stranger" at the time of the crime, then her perception should guide this Court. In that regard, the victim, in both her statement to the police on the day after the crime and her grand jury testimony, never described the defendant as a "stranger."

This is a not a case in which the defendant sexually abuses an unknown victim in a elevator or a shared apartment corridor. In those cases, the 20 point assessment may make eminent sense, especially when compared to other factors in the RAI and to the example highlighted in the Guidelines: the sexually abusing scout master who grooms his victims.

Based on the proof before this Court, the victim and defendant's relationship cannot be characterized as akin to simply sharing the same apartment building and having their conduct limited to passing in the hallway or sharing an elevator. The Court notes that the victim and defendant spent several hours together at the first bar, drinking and talking. Some of that talk and interaction occurred prior to the victim attaining intoxication. When her friends left, the victim stayed with the defendant at the fist bar. The victim was apparently comfortable with her newly-acquired acquaintance after that time interval because she elected to go to another bar with the defendant. There is no suggestion that the defendant used any compulsion to induce the victim to ride with him, and a friend, to the second bar. At the second bar, the defendant and victim talked for some time and danced, according to the eye witness, "like they had known each other for a long time." The victim also learned from the defendant that the defendant had a former girlfriend and a child from that woman. The disclosure of these facts would tend to suggest that in the two hour conversation, the defendant and victim exchanged personal information that transformed their relationship into something more than just two apartment dwellers sharing an elevator. In reaching this conclusion, this Court rejects the simple formulation suggested by the People during [*15]oral argument: that the victim, at the time of the crime and thereafter, did not know the defendant's real name and hence, they were strangers. This fact does tend to show that victim still regarded the defendant as something less than a friend but, that fact alone, when weighed against the contrary proof, does not establish that there is clear and convincing evidence that defendant was a stranger to the victim as detailed in the Guidelines.

Because there is no clear and compelling evidence to justify declaring the victim and defendant to be strangers under the Guidelines, the 20 point allocation is unjustified under the Guidelines.

5.Age at First Sex Crime

During the argument before the Court, neither counsel questioned the assessment of 10 points for the date of the first act of sexual misconduct. The RAI indicates that 10 points are assessed if the defendant engaged in an act of sexual misconduct under the age of 20.

However, this Court briefly reviews this factor because the case summary's deficiencies require this Court to find clear and convincing evidence of all factors that are included in the defendant's point allocation. The Court acknowledges that the defendant's age at first sexual offense can be probative of defendant's likelihood of recidivism "because the current offense demonstrate that the defendant had resumed his earlier aberrant behavior." People v. Jusino, 11 Misc 3d 470, 478 (Sup. Ct. 2005) (critique of the Board's assessment of points in this factor because the studies suggesting age at first offense as a factor in recidivism are decades old, equivocate on their findings, fail to isolate other contributory factors and often are based on studies of pedophiles or deviate sex offenders). The Court shares the concern articulated in Jusino — whether the age of twenty should be the sole determinant for assessing points in this category.

The Court has reviewed a number of studies — including those cited by the Board in support of their conclusion that twenty is the appropriate cut-off age — for an assessment under this category. One study cited in the Guidelines, discussing juvenile sex offenders, noted the age at which the first offense occurred and indicated that a portion of those juveniles had reoffended but the study concludes that sixteen was the "model age" which indicates possible recidivism. Groth & Loredo, "Juvenile Sexual Offenders, Guidelines for Assessment," Psychological Bulletin, 25 (1987). The article never mentions the age of twenty as having any relevance to the problem of recidivism among juvenile offenders. A second study cited, conducted by Australian psychiatrists, discusses how juvenile sex offenders "may be more resistant to treatment" but, at least in the article furnished by the Board to this Court, the authors never mention twenty as an age at which the offenders conduct should be more critically studied. McConaghy & Blaszczynski, "Resistance to Treatment of Adolescent Sex Offenders," Archives of Sexual Behavior, 18, 97-107 (1989). The Court acknowledges that while there may be evidence that suggests that a juvenile offender who assaults or abuses other juveniles has an increased likelihood of sexual recidivism, a review of the articles cited in the Guidelines and furnished by the Board does not support the conclusion that age twenty is a more appropriate cut-off for the point allocation — for a increased prospect of [*16]recidivism — than, say ages 18 or 17 or 16.[FN4]

Despite these misgivings about the underlying social science and the discrepancies in the case summary regarding the dates of conviction, one fact is undisputed: the defendant was charged with Sexual Misconduct, a misdemeanor, in May 1995, when he was 18-years-old. The defendant in this case raises no constitutional or evidentiary objections to the Board's choice of age twenty as the criteria for imposition of the point allocation. In the absence of such argument, this Court concludes that under the guidelines, there is clear and convincing evidence that the defendant was under age twenty at the time of his first sex crime and hence, the allocation of 10 points on this category is appropriate.

6.Nature of the Prior Crimes

The RAI assesses its highest total against this defendant because of his prior offense of the misdemeanor of Sexual Misconduct, as described above. In the Guidelines, the Board concludes that "prior criminal history is significantly related to his likelihood of sexual recidivism, particularly when his past includes violent crimes or sex offenses." Guidelines, p. 13. The Board adds that the this category incorporates this research by assessing an offender 30 points if he has "a prior conviction or adjudication for . . . a misdemeanor sex offense." Id.

The defendant argues that the prior misdemeanor in this case is unfairly accorded the same-SORA weight as a "prior violent felony," because the plea in the prior case did not involve violence, there was no evidence of any lack of actual consent or forcible compulsion and a 13-year interval passed between offenses. Initially, the Court notes that the mere passage of time does not support any conclusion that the defendant poses a diminished risk of recidivism. People v. Twyman, 59 AD3d 415 (3d Dep't 2009) (assessment for prior crime was appropriate, despite 24 years dated, because evidence established that defendant removed 12 year old's pants and therefore assault contained a sexual component).

The defendant's argument gains some traction because of the unusual and somewhat muddled facts of the prior offense. The record establishes that the defendant was charged with Rape in the First Degree on May 21, 1995. According to the District Attorney, the facts underlying the crime involved allegations that the defendant had sex with a 13-year-old. Without more, these facts clearly justify this serious felony charge and, in the context of the current proceeding, the facts support an equivalence between that charge and the serious violent felonies that are also allocated 30 points in this category.

The equivalence is somewhat skewed as the facts of the subsequent prosecution are tracked. The felony charge of rape was immediately reduced by the Town Court at arraignment to the misdemeanor of Sexual Misconduct. The facts were never presented to a grand jury. Thereafter, the misdemeanor charge was apparently [*17]unresolved for nearly three years. The facts involving the prosecution raise an inference that there were unreported facts which militated against the conclusion that the conduct of the defendant involved violence. The fact that the penalty imposed for the defendant's prior conduct was minimal also raises questions about the case against him: the allegations would seem to require a substantial penalty and the actual conviction resulted in a minor penalty.

Under these circumstances, this Court is frustrated by the lack of information from the People and the similar lack of guidance in the Guidelines. The defendant argues that the Guidelines make no accommodation for the difference between the charge of a violent felony and the misdemeanor sex offense which occurred in this case. The Guidelines do appear to encourage this Court to look beyond the allegations of the prior offense. The Guidelines, when discussing sexual misconduct, state that "where a review of the record indicates that there was no such misconduct, a departure may be warranted." Guidelines, p. 14.

However, this Court declines any invitation to look any further behind the 1995 Sexual Misconduct plea and holds that the defendant can not escape the consequence of his plea to this charge. The defendant pled guilty to sexual misconduct: having intercourse with a 13- year-old when he was 18-years-old.

The Court of Appeals, in upholding New York's statutory rape law, held that the state had a strong interest in preventing sexual intercourse with under-aged females. People v. Whidden, 51 NY2d 457 (1980). There is substantial authority in the federal system that sex between an older male and a juvenile female, even without a specific finding of use of the force, is a crime of violence that can be considered by a sentencing court in evaluating a particular defendant's prior conduct. See United States v. Daye, 571 F.3d 225 (2d Cir. 2009) (holding that a prior offense, involving the sexual abuse of boys under 12 was a violent felony offense and generally concluding that any sex crimes involving young children create the risk that a perpetrator will use force); United States v. Emerson, 571 F.3d 225 (2d Cir. 2009) (holding the Vermont law statutory rape law, which protected children 15 and younger, was a violent crime); Cherry v. Ashcroft, 347 F.3d 404, 408 (2d Cir. 2003) (sexual intercourse with a minor is a crime of violence that creates a risk that perpetrator will intentionally use force); United States v. Sacko, 247 F.3d 21 (1st Cir. 2001) (discussing risks of harm to 14 year old girls from intercourse, regardless of use of force); United States v. Shannon, 110 F.3d 382, 387-88 (7th Cir. 1997) (risks of injury to 13-year-old girls from intercourse suggest that the crime is one of serious violence); United States v. Starnes, 2009 US Dist. LEXIS 45373 (N.D. Ga. 2009) (consensual sex with under-aged minor or statutory rape classified as a crime of violence).

This Court credits the rationale of the cited federal cases and concludes that the misdemeanor of Sexual Misconduct, under the circumstances of this case, contains an indicia of violence and lack of consent sufficient to equate it, for purposes of evaluating the risk of recidivism, with other violent felony offenses. This Court declines the defendant's invitation to speculate further about the underlying circumstances involved in the prosecution or resolution of the May 1995 offense.

There is clear and convincing evidence that the defendant committed the [*18]misdemeanor of Sexual Misconduct, a predicate offense within this section of the Guidelines. The assessment of 30 points under the RAI is justified as a matter of law.

7.Drug and Alcohol Abuse

The defendant challenges the 15 point allocation for a history of drug and alcohol offense. On this score, the defendant's objections are meritless. The defendant has both a Driving While Ability Impaired conviction from 1999 and a Driving While Intoxicated conviction from 2009, while the current charges were pending. These facts, combined with the acknowledged intoxication of the defendant at the time of the underlying crime constitute clear and convincing evidence to justify the allocation in the RAI. People v. Carswell, 8 AD3d 1073 (4th Dep't 2004); People v. Regan, 46 AD3d 1434 (4th Dep't 2007).

8.Release without Supervision

On this score, the defendant advances no argument. The defendant was released without any supervision and under the Guidelines, the assessment of 15 points is justified by clear and convincing evidence.

CONCLUSION

The Court concludes that there is no clear and convincing evidence that the defendant used forcible compulsion, that the victim was physically helpless at the time of the crime, or that the victim was a stranger. As a result, 50 points must be subtracted from the assessment under the RAI presented to the Court. Therefore, the defendant is rated a 95 score, which classifies him as Level 2 offender. The Court also determines that the defendant is a predicate sex offender, as the defendant was convicted of an offense set forth in Correction Law after previously being convicted of a similar offense. NY Correction Law §168-a(2)(3).

Finally, there are no facts, presented to this Court which constitute clear and convincing evidence for any departure from the the defendant's presumptive risk level as established by the Court. Guidelines Commentary at 4; Matter of O'Brien v. State of NY Div. Of Probation & Correctional Servs., 263 AD2d 804 (3d Dep't 1999) (departure only warranted when "there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines." ). The Court, in analyzing the various factors, has used the clear and convincing standard to assess the people's classification on each criteria and, as indicated, found it to be wanting in several areas. Having modified the scores in these areas, the Court can not find clear and convincing evidence to justify any further departure. People v. Hamelink, 23 AD3d 1060 (4th Dep't 2005); People v. Youngs, 21 Misc 3d 1130A (2008).

SO ORDERED.

____________________________________

Dated: December 14, 2009Hon. Richard A. Dollinger

Acting Justice, Supreme Court [*19] Footnotes

Footnote 1:This Court notes that the failure to include these variables in the RAI occasions a shift in the Court's analysis. If included in the RAI, the government would have the burden of proving by clear and convincing evidence that the psychological profile or the lack of success in treatment were indicative of an enhanced prospect of recidivism. Excluded from the RAI, these factors are consigned to variables that could, presumably, be considered in a post-RAI analysis and could argue for a downward departure. However, in that instance, the burden will have shifted, under the Guidelines analysis, to require the defendant to establish by clear and convincing evidence that his treatment and his profile favor the departure. There is no evidence in the legislative history before the Court that the Legislature intended to require that the defendant establish these factors by clear and convincing proof: the statute clearly lays that burden on the government, seeking to restrain a defendant's liberty.

The RAI does mention "a clinical assessment" presumably the equivalent of the "profile" mentioned in the statute. TheGuidelines only mention the "clinical assessment" in a "Note on Overrides," Guidelines p. 19. However, the only pertinence of the "clinical assessment" in the RAI is to support an override Guidelines, Id. (if the assessment demonstrates that the "offender has a psychological, physical or organic abnormality that decreases his ability to control impulsive sexual behavior"). This language appears to recast the legislative direction regarding a psychological profile. Under the statute, the clinical assessment would be an evaluation that the government would have to show, by clear and convincing evidence, supported a certain classification and, if favorable to a defendant and indicating a reduced risk of recidivism, could be presumably be used to reduce or modify the point accumulation. Under the Guidelines, the only profile or clinical assessment that bears any role in the risk assessment is an unfavorable assessment — a psychological, physical or organic abnormality that decreases his ability to control impulsive sexual behavior such as pedophilia or sadism. An adverse clinical assessment, under this analysis, is only a tool to be used to support an override of all other factors and creates a "presumptive risk level 3." Guidelines, id. Simply put, a clinical assessment of a reduced risk of recidivism has no impact on the RAI scoring: an unfavorable assessment trumps all other factors. This disparate result hardly seems to accord with the language or intention of this statute as it pertains to clinical assessments of defendants.

Footnote 2:What is striking to this Court is that the defendant's plea to the Sex Abuse in the Second Degree was inconsistent with the determination of Judge Leone that the victim was neither incapacitated nor physically helpless at the time of the assault. In fact, the victim's account of the crime seems to directly contradict the defendant's admission in the plea colloquy: the victim testified, both in the grand jury and in a written statement to the investigators, that she did communicate her lack of consent to the defendant at the time of the assault.

Footnote 3:The Court notes that there is also a discrepancy regarding this fact. In her statement, the victim indicates that she learned about the defendant's former girlfriend and mother of his child from the defendant on the night of the crime. In her Grand Jury testimony, the victim states that she learned of the former girlfriend on the next day from one of her roommates.

Footnote 4:All of the studies examined by this Court, including those cited in the Guidelines, strongly suggest that the juvenile offender should be accorded an "in-depth assessment of behaviors which may be the sexual expression of aggression and may escalate into assaultive behavior." Longo & Gorth, "Juvenile Sexual offenses in the Histories of A.D.ult Rapists and Child Molesters," International Journal of Offender Therapy and Comparative Criminology, 27(2), 150-155 (1983) (cited in the Guidelines). In this case, there is no evidence that the defendant received any such treatment after the 1995 Sexual Misconduct or during the period of incarceration in 1998.