People v Rodriguez

[*1] People v Rodriguez 2011 NY Slip Op 52257(U) Decided on December 20, 2011 Supreme Court, Kings County McKay, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2011
Supreme Court, Kings County

The People of the State of New York

against

Robinson Rodriguez, Defendant



10697-97



For the People:

Hon. Charles J. Hynes, District Attorney

Assistant District Attorney Connie Solimeo, of counsel

For the Defendant:

William Kastin, Esq.

Appellate Advocates

Joseph Kevin McKay, J.

Defendant Robinson Rodriguez pled guilty to the first count of this indictment, Sodomy in the First Degree, Penal Law § 130.50(3) (now labeled Criminal Sexual Act in the First Degree), on October 28, 1998 and was thereafter sentenced to an indeterminate period in state prison of 10-20 years. Given the nature of his conviction, he is adjudicated a sexually violent felony offender. He now has a conditional release date of January 23, 2012.

This Court held a Sex Offender Registration Act (SORA) hearing on December 19 and 20, 2011. The People submitted copies of the indictment, his NYSID sheet and a transcript of the Grand Jury testimony. In addition, as part of the People's case, the Court received a case summary. The Board of Examiners' Risk Assessment Instrument assessed defendant 25 points under Category 2 for what was then called deviant sexual intercourse, 30 points under Category 5 because the victim was then 6 years old and 20 points under Category 6 based on the victim's condition as autistic and mentally challenged. Each of these scores was amply supported by clear and convincing evidence in this record, and was not disputed by the defendant, who appeared personally and by counsel. This score of 75 points puts defendant at the lowest score of Level II as a moderate risk to re-offend.

Defendant's case for a downward departure rests entirely on the proposition that the Risk Assessment Instrument did not adequately take into account his exceptional performance while [*2]incarcerated, his exceptional performance and ratings in treatment programs and his extraordinary expressions of acceptance of responsibility and remorse. (See Categories 12, 13 and 14 of the Risk Assessment Instrument). In addition, his supportive family situation was also emphasized. See Category 15.

In support of this proposition defendant has submitted an Affirmation by counsel dated December 14, 2011 and Exhibits A through J, which include monthly evaluations in his treatment program, the Vermont Assessment of Sex Offender Risk, the Static-99 Coding Form [FN1] as applied to defendant, and his discharge summary dated October 12, 2010, along with numerous citations, progress reports, and a written statement by defendant. In addition, defendant made an oral statement to the Court and answered the Court's questions and submitted two additional letters from his family regarding their intention to welcome him back in their home.

Both sides acknowledge that this application for a downward departure must be supported by a preponderance of the evidence on defendant's behalf. See People v Wyatt, 89 AD3d 112 (2d Dept 2011) [contrast, People v Rivera, 73 AD3d 881 (2d Dept 2010)]. According to Wyatt, in order to grant a downward departure the Court must first find:

"the cited mitigating factor tends to establish a lower likelihood of re-offense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines, and the sex offender has established the facts in support of that mitigating factor."

Here, defendant's performance in the Sex Offender Counseling and Treatment Program was so exceptional that he was deemed to be a low risk. The same is true under the Vermont Assessment and Static-99 Coding Form as applied to him. These circumstances cannot be said to have been taken into account adequately by zero scoring under Categories 12 and 13 of the Risk Assessment Instrument. In People v Washington, 84 AD3d 910 (2d Dept 2011), appeal dismissed 17 NY3d 849 (2011) defendant asserted his participation and achievement in a prison sex offender treatment program was exemplary. County Court was held to have erred in declining to downwardly depart on the ground that participation in such a treatment program was adequately taken into consideration in the categories to acceptance of responsibility and conduct while incarcerated.

Accordingly, the Court finds that as a matter of law his exceptional performance and rating is a mitigating factor not adequately taken into account by the Risk Assessment Instrument and was amply supported by the defense submissions. While there is never a guarantee by the scientific or corrections community that any given inmate will not re-offend, the whole purpose of the Risk Assessment Instrument and SORA hearing is to make a best judgment prediction based on traditional factors and statistical and scientific data. While defendant's conduct in 1997 [*3]was and remains shocking to the Court and the community, every other factor in his case points toward a low risk of re-offense. Level I still requires his registration for life and only dispenses with the requirement of internet exposure.

Therefore, based on these findings and conclusions, I hereby GRANT a downward departure to Level I for this defendant.

IT IS SO ORDERED.

_____________________________

J.S.C. Footnotes

Footnote 1: See Static-99 R, the revised actuarial risk assessment as of 2009, which would take into account defendant's age (40) and actually score him as an even lower risk than the original Static-99 did. See State v Frank V, 32 Misc 3d 1217 (Sup Ct, Bronx County 2011); State v McFarland, 29 Misc 3d 1206(A), 2010 NY Slip Op 51705 U (Sup Ct, New York County 2010); State v Rosado, 25 Misc 3d 380 (Sup Ct, Bronx County 2009).