People v Shiley
Annotate this CaseDecided on December 15, 2016
County Court, New York County
The People of the State of New York
against
Spencer Shiley, Defendant.
2016-7110
For the People:
SANDRA DOORLEY, ESQ.
Monroe County District Attorney
ELIZABETH BUCKLEY, ESQ.
Assistant District Attorney
47 S. Fitzhugh Street
Rochester, New York 14614
For the Defendant:
ZACHARY T. RUETZ, ESQ.
Tully Rinckey PLLC
400 Linden Oaks, Suite 110
Rochester, New York 14625
Christopher S. Ciaccio, J.
A hearing was held on November 15, 2016, pursuant to Correction Law Article 6-C to determine the level of risk to re-offend of the defendant/offender Spencer Shiley, and, to what extent he poses a threat to public safety. The defendant/offender was present for the hearing. He had moved this Court by Notice of Petition dated October 19, 2016 for an Order pursuant to Corrections Law § 168-o modifying the defendant/offender's "sex offender risk level." The parties agreed that since the risk level had not yet been determined, the Petition was premature, nonetheless the Petition and the attached exhibits would be treated as a request for a downward modification.
The following exhibits were received into evidence without objection:
People's Exhibit 1: Risk Assessment Instrument (RAI);
People's Exhibit 2: Case Summary.
Defendant's Exhibit A - Notice of Petition with attached Exhibits A through I.
FINDINGS OF FACT
On September 13, 1999 in the State of Idaho, defendant-offender plead guilty to Lewd Conduct with a Child under the Age of Sixteen Years (Idaho Code § 18-1508).
The offense occurred on numerous occasions on or about and between May 1, 1991 and June 1, 1997 and involved the defendant/offender having manual genital contact and oral genital contact with a female family member beginning when the victim was four years old and he was eleven years old. The defendant/offender was sentenced to 12 years of probation. In 2008 he was convicted in Idaho of Disturbing the Peace, relative to an incident involving discipline of his son, who had refused to take medicine. He served two days in jail on that charge, and his probation was "revoked" and then reinstated for an additional three years.
He completed his sentence while on probation. The Board was notified on July 8, 2016 that the offender is currently residing in Monroe County, New York.
The defendant/offender has been married for 18 years. They have two children. His wife relates that they first met when they were teenagers, and that she was the first person that Mr. Shiley "opened up to" about his behavior with his sister. She became pregnant with his child while still in their teens, which they gave up for adoption. She has been "watchful' through their relationship, but she has seen him change as a person, and has never had a concern for their own children.
The defendant/offender successfully completed a course of treatment at New Beginnings in 2004. A counselor there offered that the defendant/offender continues to stay in contact with her even after having completed treatment, and she wrote in aletter dated that "she did not believe that Mr. Shiley poses any threat toward his children or anyone else at his time."
Shiley has worked for Seneca Food Corporation in the Information Technology support staff. He is a valued employee, and "adheres to social and legal norms as expected in his roles as father, husband, friend, colleague, neighbor and citizen," as per the letter of recommendation of his supervisor.
In 2016 Shiley began seeing Carl Christensen, LCSW-R, for an evaluation as to his risk to re-offend, who by a report dated September 10, 2016 opined that Shiley is a "very low" risk to re-offend and that his Sex Offender Risk level would appropriately would be a Level One.
In 2008 Shiley completed the "Family Violence Prevention Program offered through the Terry Reilly Health Services, which he did with a "good attitude."
Included in the Petition are letters of recommendation from family members - his sister (the victim), his brother, his wife, and his parents and in-laws. There is also a letter from church members - Shiley is a member of the Church of the Latter-Day Saints. There is a letter from the Comptroller at his place of employment. All testify to the strides Shiley has made as a person, father, husband, community member, and friend. Notably, defendant's sister, supports the request for a downward modification to a Level One.
The defendant/offender's criminal history began with the instant offense.
There is no indication that defendant/offender has a history of alcohol or substance abuse and he has participated in sex offender treatment while incarcerated. His conduct while supervised has been deemed unsatisfactory since he did have a probation violation.
Defendant/offender was assessed a total of 95 points by the Board of Examiners on the Risk Assessment Instrument and deemed a Level Two (Moderate) Risk to Re-Offend as follows:
Risk Factor #2 B Sexual Contact with Victim: Sexual Intercourse, Deviate Sexual Intercourse, or Aggravated Sexual Abuse - 25 pointsRisk Factor #4 — Duration of Offense Conduct with Victim - 20 points
Risk Factor #5 Age of Victim, 10 or less, 63 or more — 30 points
Risk Factor #8 — Age at First Sex Crime, 20 or less - 10 points
Risk Factor #13 — Conduct While Confined/Supervised, Unsatisfactory - 10 points
Total: 95 points.
The People argued that the values were accurate and supported by clear and convincing evidence. The People also support the Board's recommendation of no downward departure.
Defendant/offender objected to points being assessed under Risk Factor 13. In addition, by the Notice of Petition (Exhibit A), he argues that if this Court did accept the recommendation of the Board and the People, he has met his burden, by a preponderance of the evidence, that mitigating factors not adequately taken into account by the Guidelines exist to justify a downward departure to a presumptive Risk Level 1 (Low) Risk to Re-Offend.
CONCLUSIONS OF LAW
Pursuant to section 168-n of Article 6-C of the New York Correction Law, a sentencing court is charged with the responsibility of determining whether a convicted sex offender is a sexual predator, sexually violent offender, or predicate sex offender, as defined in Correction Law § 168-a (7).
Additionally, the court must also determine the offender's level of notification based on his risk to re-offend, after receiving a recommendation from the New York Board of Examiners of Sex Offenders (Correction Law § 168-l).
The People bear the burden of establishing the facts on which the Board's determination or its own determination of risk assessment is based by clear and convincing evidence (Correction Law §168-n). The Court shall review the Board's recommendation and has the discretion to set aside a recommendation in arriving at a lower, or higher, classification determination, after considering the risk factors and giving the defendant an opportunity to be heard (Id.).
The Board's recommendation is contained in what is referred to as its "Risk Assessment Instrument" ("RAI"). While the RAI allows the Court and the Board to utilize a tool for numerical determination of risk, the Court must look at all of the facts and circumstances in order to make an accurate assessment of the risk that each individual defendant poses. Further, the Court may consider reliable hearsay submitted by either party, provided that it is relevant to the determination (See Correction Law §168-n [3]; People v Mingo, 12 NY3d 563, 571-572 [2009]).
Here, the Court finds that the People have not sustained their burden of establishing facts by clear and convincing evidence to support the determination of the Board of Examiners of all of the risk factors to which points were assessed. Specifically, there is insufficient evidence that defendant's conduct while confined/supervised has been unsatisfactory. Except for one incident, defendant/offender's behavior while confined and/or supervised has been rather exceptional.
All other categories are supported by clear and convincing evidence. The defendant/offender's plea, as well as the Criminal Complaint and Prosecuting Attorney's Information upon which the Case Summary was based, provide sufficient reliability to assess the offender the points as indicated on the RAI (Exhibit 1).
Thus the correct score is 85 points, which keeps the defendant/offender at a Level Two risk to re-offend.
The defendant/offender has moved for a downward departure. A departure from a sex offender's presumptive risk level generally is warranted only where "there exists an aggravating [*2]or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account" by the Sex Offender Registration Act (hereinafter SORA) Guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Johnson, 11 NY3d 416, 420-421 [2008]; People v Smith, 122 AD3d 1325 [4th Dept 2014]). A defendant who seeks a downward departure has the burden of establishing by a preponderance of the evidence that a downward departure in the risk level classification is warranted (People v Gillotti, 23 NY3d 841, 852 [2014], People v Johnson, 11 NY3d at 420-421 [2008]).
Here, the Court concludes that the defendant/offender has established, by a preponderance of the evidence, that he has had an exceptional response to treatment, as documented by the psychological evaluation of Carl Christensen, LCSW-R, 2016; the report of the completion of treatment at New Beginnings Mental Health Center and Terry Reilly Health Services, and the letters from family members, friends and his employer.
"The SORA Risk Assessment Guidelines and Commentary recognize that '[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure'" (People v. Migliaccio, 90 AD3d 879, 880 [(2nd Dept 2011], quoting the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 17 [2006]; see also People v Lewis, 140 AD3d 1697 [4th Dept 2016]).
Since the defendant/offender has shown by a preponderance of evidence the existence of a mitigating factor not adequately taken into consideration by the Guidelines, the door is opened to this Court's "exercise of its sound discretion upon further examination of all relevant circumstances" (People v Worrell, 113 AD3d 742, 742-743 [4th Dept 2014]). " 'A sex offender's successful showing by a preponderance of the evidence of facts in support of an appropriate mitigating factor does not automatically result in the relief requested, but merely opens the door to the SORA court's exercise of its discretion upon further examination of all relevant circumstances' " (People v. Smith, 122 AD3d 1325, 1326 [4th Dept 2014], quoting Worrell at 743).
Here, there is an abundance of evidence to support the application for a downward modification. The highlights, of which there are many, include a letter in support from the victim, his sister; a frank and insightful letter from his wife, detailing the difficulties they faced together and their hopes and dreams of raising a family in Western New York; the many years the defendant/offender has continued to move forward in life, despite setbacks; and the letters in support written by other family members, who have a first-hand opportunity to view the defendant/offender in a family environment and who all relate how he well has fulfilled his responsibilities and role as a husband and father.
The application for a downward modification is granted. Accordingly, it is hereby
ORDERED that the defendant/offender's risk assessment score is determined to be Level One (Low); that his name be entered in the Sex Offender Registry administered by the New York State Division of Criminal Justice Services, and that the defendant/offender register in accordance with the Corrections Law as a Sex Offender.
There was no request that the defendant/offender be given a designation as a sexually violent offender, sexual predator or predicate sex offender.
This constitutes the DECISION and ORDER of the Court.
Dated: December 15, 2016
Rochester, NY
Honorable Christopher S. Ciaccio
Monroe County Court Judge
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