People v McFarland

[*1] People v McFarland 2012 NY Slip Op 51137(U) Decided on June 21, 2012 Supreme Court, New York County Conviser, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 21, 2012
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Elias McFarland, Defendant.



7581-99



New York County District Attorney Cyrus R. Vance, Jr. (Courtney Groves, of counsel) for the People;

Legal Aid Society (Claudia Conway and Lorca Morello, of counsel) for the Defendant.

Daniel Conviser, J.

The Defendant was adjudicated a Level 3 sex offender at a high risk to re-offend under the Sex Offender Registration Act ("SORA") in a 107 page Decision and Order by this Court on October 4, 2010. People v. McFarland, 29 Misc 3d 1206(A), 2010 WL 3892252, 2010 NY SlipOp 51705(U) (the "Original SORA Decision" or the "SlipOp"). The length of that Decision was due to this Court's detailed analysis of the manner in which risk assessments are made under SORA. In its Original SORA Decision, this Court found that "the current procedures by which sex offenders are classified under the [SORA Risk Assessment Instrument or "RAI"] are devoid of any rational basis and violate substantive due process."[FN1] The Court further found that the ability of courts to depart from the presumptive RAI score did not cure these due process deficiencies. The Court held, however, that since the First Department had previously rejected that identical constitutional claim this Court was bound to follow that decision. Applying controlling appellate authority, the Court then concluded that the Defendant was a level 3 offender under the RAI and that the Defendant had not provided evidence which justified a departure from that presumptive risk level.

The Defendant moves here to reduce his risk to a Level two (at a moderate risk to re-offend) pursuant to Correction Law § 168-o (2). He has submitted extensive documentary materials in support of that application which were received without objection and also presented the testimony of an expert witness, Dr. Sanford Drob. The People did not present any witnesses or other evidence but cross-examined Dr. Drob and oppose the instant application. For the reasons stated infra, the Defendant's motion is granted.

[*2]STATEMENT OF FACTS [FN2]

Elias McFarland is 78 years old. He was convicted by plea of guilty on January 27, 2003 of one count of Assault in the Second Degree and one count of Attempted Sexual Abuse in the First Degree (the "Instant Offense"). On February 21, 2003, he was sentenced to a determinate sentence of imprisonment of 5 years with 5 years post-release supervision on the assault count and an indeterminate sentence of 2-4 years incarceration on the sexual abuse count, with those sentences to run concurrently. The Court's review of the court file for this crime indicates that the Defendant repeatedly struck an 86 year old woman with a blunt object causing lacerations and a loss of consciousness. As the victim lost consciousness, she felt her attacker pull her pants down. When she awoke her pants and shoes had been removed. She had significant bruising on her hands and back and required surgery for an eye injury which occurred during the attack. She identified her attacker as a person she knew from the building she lived in and said he had lived there for about five years.

The Defendant allegedly told the arresting police officer that he came out to the garden of the senior citizens housing complex where the assault occurred to get drunk and pass out. He also admitted that he knew the victim. When interviewed in preparation for his pre-sentence report, he denied his guilt but said he wanted his guilty plea to stand. He asserted that he had "blacked out" and that someone else had tried to rob the victim. During argument on the Original SORA Decision, the Defendant's counsel asserted that the evidence against Mr. McFarland was highly suspect and that despite his guilty plea and the complainant's grand jury testimony, there was not reliable evidence that Mr. McFarland was guilty.

The Defendant has a criminal history which dates back to the 1950's and includes a number of crimes committed in Virginia. The details surrounding those convictions are not completely clear. He was convicted of the crime of "Rape" in Virginia in 1955 and initially received a five year prison sentence which may have been subject to early termination. He was convicted of a crime called "Felony Cutting with Intent to Maim", again in Virginia, in 1957. He apparently received a five year sentence for that crime. He was convicted again of the crime of "Rape" in 1962 and apparently given a sentence of 6 years and 8 months imprisonment. He was convicted of Arson in the Second Degree in New York in 1985. He received a sentence of 90 months to 25 years incarceration for that crime.

A state correctional services report prepared in 2003 when Mr. McFarland began his sentence for the Instant Offense provides some additional information about the Defendant's crimes although the source and reliability of that information is unclear. In this report it is noted that his rape convictions involved both a juvenile and an elderly woman. It is noted that the maiming incident involved his wife while the arson case involved setting fire to his girlfriend's apartment. It is also noted that Mr. McFarland acknowledged drinking excessively and said he was friends with the victim in the Instant Offense. He denied committing that crime but also said he had blacked out and was unable to remember it. At argument on the Original SORA Decision, Defendant's counsel challenged criminal history information indicating that he had been convicted of rape in 1955 and 1962 and asserted that there was not a sufficient basis to determine that these convictions in fact concerned Mr. McFarland. Counsel further argued that [*3]the Court had not been provided with any information about what the elements of the crime called "Rape" were in Virginia in 1955 and 1962.

The Case Summary prepared by the Board with respect to the Original SORA Decision indicated that the Defendant's behavior while incarcerated had been "satisfactory" and that he had been progressing in a sex offender treatment program but was removed from that program "though no fault of his own". The circumstances of his removal were not otherwise specified.

As a part of its Original SORA Decision, the Court scored the RAI for the Defendant. The Court assessed the Defendant with 30 points under RAI Factor 1 for use of a dangerous instrument; 30 points under Factor 5 because the victim was 63 years old or more; 30 points under Factor 6 for a prior violent felony history; 15 points under Factor 11 for a history of drug or alcohol abuse and 10 points under Factor 12 for not accepting responsibility. That is a total of 115 points, 5 points above the threshold for a Level 3 offender. The Court also determined that the Defendant qualified for an "Override" under the RAI because he had a prior felony conviction for a sex crime. That also resulted in his classification as a Level 3 offender. The Court then found that the Defendant had not presented evidence which justified a departure from that presumptive risk level.

Mr. McFarland is currently married to his wife of 43 years, Berta McFarland who is now 84. Mr. McFarland is not permitted to live in the apartment where his wife resides because he is a Level 3 sex offender. The reason for this residency restriction is that a Level 3 sex offender on parole is not permitted to live within 1000 feet of a school and Mrs. McFarland's residence is within such a 1000 foot boundary. See Executive Law § 259-c (14).[FN3] This statutory prohibition applies to all Level 3 offenders even where an Instant Offense, as in the Defendant's case, does not involve a child. This residency restriction would not apply to Mr. McFarland if he were a Level 2 offender, however. Id. Mrs. McFarland suffers from asthma and a heart condition, walks only with great difficulty and wants to live with her husband. Since he is not permitted to live with his wife, Mr. McFarland resides at the Bellevue Men's Shelter and apparently spends the bulk of his time at his wife's apartment where he serves as her primary caretaker. The Instant Offense occurred at the apartment complex where his wife lives. An online news article regarding the shelter from July of 2011 and submitted as evidence by the Defendant without objection portrays the shelter as filthy, full of physically ill, substance abusing and mentally disturbed residents and infested with rats, mice and other vermin.

A report from Mr. McFarland's parole officer, Joseph Rehal, on August 8, 2011 indicated that since being placed back on parole on June 21, 2010, he has made all of his appointments and has had consistently negative urine drug tests. The report also indicates that he completed his required programming on June 13, 2011. A report from the "Metropolitan Corporation for Life Skills" dated August 11, 2011 indicated that Mr. McFarland had completed an outpatient chemical dependence program and maintained consistent attendance at a sex offender treatment program where he was "actively involved in discussion and received feedback with a positive attitude". [*4]

Subsequent to receiving the Defendant's instant motion, the Court sought and received, as required by the SORA statute, an updated risk assessment recommendation from the Board dated November 21, 2011. In its assessment the Board noted that Mr. McFarland had remained law-abiding during the 17 months he had been out of prison, complied with all parole and SORA conditions and completed a one year substance abuse treatment program. While the Board said this was positive, it opined that this did not provide clear and convincing evidence that his risk level had been reduced. The Board noted that Mr. McFarland had committed his most recent offense while on parole after he had begun drinking again, that the actuarial risk assessment by Dr. Drob (discussed infra) was no different than it would have been when the Original SORA Decision was made and that Mr. McFarland had continued to deny responsibility for his crimes which was "very troubling". The Board also noted that the apartment where Mr. McFarland's wife resides is in the same location where the Instant Offense occurred and opined that he should explore alternative living arrangements which would allow the couple to live together. In sum, the Board said that "Mr. McFarland simply has not been at liberty long enough to demonstrate his sobriety and crime-free lifestyle".

Hearing Testimony and Report of Dr. Sanford Drob

Dr. Sanford Drob holds a PhD in clinical psychology and a second PhD in Philosophy with a specialty in the Philosophy of Psychology. He did a clinical internship in psychology at Bellevue hospital and then subsequently worked at Bellevue as a senior psychologist at the hospital's prison ward and later as the director of psychological assessment there. He subsequently worked in private practice and as an educator training PhD psychology students. He has conducted numerous sex offender evaluations and been qualified as an expert witness in the field of forensic psychology. He has conducted numerous sex offender risk assessments but did not recall whether he had previously evaluated an offender under the New York SORA statute. He has never conducted a SORA assessment using the RAI.

Dr. Drob conducted an analysis of Mr. McFarland's risk and outlined the sources of information he used in that assessment. He said his review included a battery of tests, interviews with Mr. McFarland, interviews with collateral contacts, like Mr. McFarland's wife and the use of two actuarial risk assessment instruments. He interviewed Mr. McFarland three times: in April of 2011, August of 2011 and on April 24, 2012. He also reviewed various documents relevant to Mr. McFarland's criminal history and risk.

In addition to details about his history, some of which are recounted supra, Dr. Drob learned that Mr. McFarland is attending Alcoholics Anonymous ("AA") meetings three times per week. According to Dr. Drob, Mrs. McFarland reported that Mr. McFarland had been a "decent husband. . . He likes cooking . . . he rides his bicycle. . . . he's been a good provider . . . except when he's drinking he is not fresh to women and . . . he doesn't touch alcohol anymore."[FN4] Mrs. McFarland opined that because of his age, Mr. McFarland had "settled down" and that she had seen "a lot of changes in him. He doesn't drink, he doesn't go to the park and hang out. He just stays at home".[FN5] [*5]

Psychological and intelligence tests indicate that Mr. McFarland does not suffer from dementia and is at the low end of the low-average range in intellectual functioning. He does not have a major psychiatric disorder but does have some personality dysfunction involving narcissistic and paranoid traits which make interpersonal adjustment difficult. On the other hand, Dr. Drob testified, the Defendant does not likely suffer from a personality disorder or if he does, it is a mild one. A "Rorschach" test indicated that Mr. McFarland is not severely disturbed.

He testified that Mr. McFarland scored a 6 on the Static 2002 actuarial risk assessment instrument which placed him at a moderate risk to sexually re-offend. He said that this put him in an offense category with respect to the general offender population who had re-offended at a rate of 8% over five years or 9% over ten years. If the Defendant were compared to offenders in a specially selected high risk group, the re-offense rate would be 20% over 5 years and 22% (apparently over 10 years). This is an actuarial risk assessment instrument which was derived from an analysis of 3000 offenders and is an updated version of the "Static-99" actuarial risk assessment instrument developed by the same authors. The Court takes judicial notice of the fact that the Static-99 and its successor actuarial instruments are the most commonly used actuarial risk assessment instruments in the world today.

Dr. Drob also used an instrument called the "Sexual Violence Risk 20" (the "SVR20") which is an instrument which organizes clinical thinking around "dynamic" (or changeable) risk factors. Mr. McFarland scored a 6 out of 20 on that instrument. Dr. Drob outlined a number of negative, mainly static variables, relevant to that score including the use of weapons or threats of death in prior offenses, physical harm to victims, multiple offenses, past supervision failures and past non-sexual violent crimes. Positive attributes which Mr. McFarland demonstrated were that he did not have negative attitudes towards intervention and said that he had benefitted from sex offender treatment, that he had realistic goals, that he did not deny his alcohol abuse and that he did not manifest attitudes which condoned sexual offending (although he did continue to deny his sex crimes). The frequency of his offenses have declined over time. His offenses have also not occurred over a "dense" time period. He has a good relationship with his wife and he is not psychopathic, meaning that he does not completely lack empathy for others. He has not manifested employment problems.

Mr. McFarland has been out of prison without any evidence of offending and been free from substance abuse for two years. Dr. Drob said that numerous studies had indicated that the denial of offending had little or no relationship with recidivism and that, in fact, one study had correlated such denial, counter intuitively, for high risk offenders with a decreased risk for re-offense. He cited numerous specific studies in support of that proposition including a "meta analysis" of 95 studies including 31,000 offenders which found little or no relationship between denial and sex offender recidivism. He acknowledged that the fact that Mr. McFarland had committed his last offense at age 68 or 69 was "very disconcerting" because the risk level for offenders was expected to decrease by that age. He opined, however, that Mr. McFarland currently was at a moderate risk to re-offend sexually.

Although he was aware that the RAI put Mr. McFarland at the low end of the high range of risk, he felt that the Defendant's engagement in treatment, record over the past two years, and in particular his sobriety, placed him in the moderate risk category. On cross-examination, Dr. Drob affirmed that Mr. McFarland had denied committing all of the previous sex offenses for [*6]which he had been convicted. He acknowledged that if Mrs. McFarland, who is 84 years old and in ill health were to die, that could have a negative impact on Mr. McFarland. Mr. McFarland will be on post-release supervision until 2015. Dr. Drob's report, which was received in evidence, also noted that Mr. McFarland's current age reduces his re-offense risk.

CONCLUSIONS OF LAW

In order for a Defendant to obtain a modification of his risk level under SORA he must demonstrate that such a modification is justified by clear and convincing evidence. Correction Law § 168-o (2). The Defendant's previous RAI score and presumptive override are not any different now than they were at the time of the Original SORA Decision. To lower the Defendant's risk level then, the Court would have to find that a departure from the presumptive risk level was warranted. Generally, a 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, that is otherwise not adequately taken into account by the RAI. See e.g., People v. Inghilleri, 21 AD3d 404 (2d Dept 2005); People v. Mount, 17 AD3d 714 (3d Dept 2005); People v. Townsend, 60 AD3d 655 (2d Dept 2009), lv denied, 12 NY3d 713; People v. Wheeler, 59 AD3d 1007 (4th Dept 2009), lv denied, 12 NY3d 711.

The Court found Dr. Drob's testimony to be credible and believes that several factors, considered together, demonstrate by clear and convincing evidence that a departure from the RAI's presumptive risk level and a modification of the Defendant's risk category is appropriate. Mr. McFarland has now been in the community for two years. During that time he has apparently led a completely law abiding life. But there are a number of other even more significant factors with respect to his behavior during that two year period which have reduced his re-offense risk. Most significantly, he has stopped drinking alcohol. Alcohol abuse has apparently been the single most significant fact which has been associated with the Defendant's crimes. It played a key role in the Instant Offense. There is no guarantee, of course, that this abstinence will continue. But Mr. McFarland is not sober by chance. He is clearly working at it. He attends AA meetings three times per week. He has completed a substance abuse treatment program. He appears determined to remain sober. He is being supported in that goal by his wife.

Mrs. McFarland obviously has an interest in having her husband's risk level reduced so he can come home to live and more completely care for her. But she is also the person who knows him best. As she perceptively observed, Mr. McFarland becomes offensive with women when he drinks. He doesn't drink anymore. Mr. McFarland appears to be dedicated to caring for his wife. He has actively participated in sex offender treatment. As this Court outlined in the Original SORA Decision, time spent offense-free in the community has been linked in actuarial studies to a decreased risk to re-offend. That factor is not accounted for, however, by the RAI. See SlipOp at 37. Two years, of course, is a relatively modest amount of time. Indeed, the Board's argument that this time period is simply not long enough to justify granting the instant motion is not an unreasonable one. The fact that Mr. McFarland has apparently not only remained completely sober during that period but put into place a lifestyle designed to maintain that sobriety, however, is very significant.

A second factor is Mr. McFarland's age (78). As the Court outlined in the Original SORA Decision, age is a significant factor which reduces an offender's risk to re-offend. It is also a factor which is not taken into account by the RAI. See SlipOp at 38. This factor is much [*7]less significant for Mr. McFarland than it is for other offenders because the Defendant's last crime occurred at an advanced age when his actuarial likelihood to re-offend had already significantly diminished. Nevertheless, the fact that he is now 9 years older than he was when he last offended in 2003 indisputably decreases his actuarial re-offense risk.

His relationship with his wife since being released from prison also appears to be a significant protective factor which this Court did not have the opportunity to evaluate at the time of the Original SORA Decision. Reflecting the decreased sexual re-offense risk which arises from long term intimate relationships, the Static-99 assigns a point to offenders who have not lived with an intimate partner for at least two years. See SlipOp at 38. During the hearing on the Original SORA Decision, the Defendant's psychiatric expert did not assess Mr. McFarland with that one point on the Static 99 because he had already apparently lived with his wife for two years at the time. See SlipOp at 56-58. Thus, allowing Mr. McFarland to live with his wife now would not reduce his score on the Static 99. It seems obvious to the Court, however, that forcing Mr. McFarland to sleep at the Bellevue Men's Shelter as opposed to at home with his wife may increase his re-offense risk. Perversely, moreover, the reason Mr. McFarland cannot live with his wife is because of his Level 3 SORA designation. So that risk level determination may actually be creating a greater risk that he will re-offend in this case.

The Board, in its most recent submission, opines that Mr. McFarland should "explore alternative living situations which would allow him to reside with his wife" to alleviate the hardship which the current inability of the McFarlands to live together has created. Obviously, however, the ability of an 86 year old woman in failing health and with very limited mobility and a 78-year-old Level 3 sex offender, both of whom are living on government assistance, to find a suitable alternative apartment in New York City might well be severely limited. The chance that the McFarlands could find such an apartment in New York City which was not within 1000 feet of a school is probably non-existent. Nor, in the Court's view, do the current residency restrictions which have been imposed on Mr. McFarland have any positive benefit in protecting the community. Mr. McFarland apparently spends all of his free time prior to his Bellevue curfew at his wife's apartment now anyway. He just cannot sleep there. It is difficult to see what public safety purpose is being served by that restriction. Other than its negative impact on Mr. McFarland, the most significant consequence of the current restrictions is that Mrs. McFarland is being deprived of the complete care and companionship of her husband. Obviously, these circumstances are again a factor which is not considered by the RAI.

The final factor which, in the Court's view, justifies a departure here is not any changed circumstance regarding the Defendant. It is the new evidence which came to light about Mr. McFarland's risk during the instant hearing. In the Original SORA Decision, the Court said that it could not depart from the presumptive RAI score because it had not received "any clinical assessment or expert opinion about the Defendant' actual risk for re-offense" which would justify such a departure. See SlipOp at 58.

The Court now has such an assessment. The Court credits Dr. Drob's expert opinion that the Defendant is now at a moderate risk for re-offense. That opinion is not only based on Dr. Drob's informed clinical judgment derived from multiple interviews, the review of documents and a battery of psychological tests but on the Defendant's score on a validated actuarial risk assessment instrument. As the Court outlined in the Original SORA Decision, the RAI is not a [*8]such a valid risk measure. It has never been demonstrated to be probative or accurate in any way in predicting re-offense risk. The Court will not repeat here the voluminous evidence which it outlined in support that conclusion in the Original SORA Decision. But three brief examples of why the RAI does not accurately reflect the Defendant's risk in this case, among many others, are instructive here.

The Defendant was assessed ten points under the RAI for not accepting responsibility for his crimes under RAI Factor No.12. Without that point assessment, he would have been considered to be at a moderate risk to re-offend under the RAI's point scoring system, although he still would have been classified as being at a high risk to re-offend because of the presumptive "Override" which the RAI assigned to him because of his prior sexual offense convictions. The Board, in its most recently submission, also noted that Mr. McFarland's continued denial of his sexual offenses was a "very troubling" fact which, among others, indicated that the instant motion should be denied. As outlined in the Original SORA Decision, however, the failure of a sex offender to accept responsibility for his crimes is not correlated with an increased risk to re-offend. See SlipOp at 32-33. Dr. Drob testified that a meta-analysis of 95 studies with 31,000 offenders, among other studies,had conclusively demonstrated the lack of any such relationship. The fact that Mr. McFarland continues to deny his crimes may well impair his ability to benefit from treatment. It is, as the Board says, troubling. But it does not increase his re-offense risk. It does not transform him from a moderate to a high risk offender. As with respect to numerous other scoring parameters, the RAI's point score for this factor is archaic and inaccurate.

Nor is the presumptive override for Mr. McFarland's prior sexual offense convictions in 1955 and 1962 justified. As the evidence with respect to the Original SORA Decision indicated, the fact that an offender has previously been convicted of a sex crime cannot be used alone to determine that he is at a high risk to re-offend. That history must be considered along with other relevant factors. See SlipOp at 36-37. Mr. McFarland was scored with an additional 30 points under the RAI because the victim of the Instant Offense was over 63. Without those points, he would have been 25 points below the scoring threshold for a Level 3 offender. The expert testimony and submissions at the hearing on the Original SORA Decision, however, indicated that there is no known scientific evidence of any kind which links the advanced age of a victim to an increased sexual re-offense risk. See SlipOp at 24-26. The age of the victim in the Instant Offense is certainly disturbing. But it says nothing about the Defendant's risk to re-offend.

This Court declined to depart from the RAI in the Original SORA Decision because it held that it did not have evidence which warranted such a departure. That evidence has now been presented. There is absolutely no doubt, in the Court's view, that the Static-2002 and Dr. Drob's expert opinion that Mr. McFarland is at a moderate risk to re-offend is more probative of his actual re-offense risk than the un-validated and clearly erroneous scoring parameters of the RAI. For all of those reasons, the Defendant's motion is granted and the Defendant is determined to be a sex offender at a moderate risk to re-offend or a Level 2 offender under the Sex Offender Registration Act.

June 21, 2012______________________

Daniel Conviser, A.J.S.C. [*9]

Footnotes

Footnote 1: SlipOp at 1. The RAI is a numerical risk assessment scale created by the Board of Examiners of Sex Offenders (the "Board") under New York's SORA statute to determine the presumptive risk level of a sex offender. Courts may depart from that presumptive risk level in appropriate cases. See discussion infra.

Footnote 2: Many of these facts are derived from the Original SORA Decision.

Footnote 3: The Court understands that the vast majority of apartments in Manhattan have been determined to be within 1000 feet of a school although there was no testimony at the hearing with respect to that issue.

Footnote 4: May 23 Hearing Transcript, pp. 22-23.

Footnote 5: Id. p. 23.