People v Mitch

[*1] People v Mitch 2003 NY Slip Op 51513(U) Decided on December 19, 2003 County Court, Yates County, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2003
County Court, Yates County,



against

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, ROBERT L. MITCH, Offender.



HGI No. 03-501



Hon. Susan H. Lindenmuth

Yates County District Attorney

Counsel for the People

Carl J. Schwartz, Jr., Esq., P.C.

(Alan P. Reed, Esq. of Counsel)

Counsel for the Offender

W. Patrick Falvey, J.

RISK LEVEL DETERMINATION AND ORDER

The offender plead guilty in the State of Florida on September 14, 1995 to the second degree felony of Lewd Assault [Florida Statute §800.04(1)]. The Court, on the same day, withheld adjudication of guilt and sentence and placed the offender on probation with special conditions for a period of three years. However, the Court gave the offender permission to apply for early termination after two years if all conditions were current/complete and there were no violations.

The Florida conviction was a result of the offender, while in his thirties, subjecting his stepdaughter (DOB: March 24, 1982) between the months of January and April of 1995 to a pattern of sexual misconduct (fondling) beginning when the child was eleven or twelve and ending at age of thirteen.

The special conditions required the offender to successfully complete and follow the recommendations of alcohol treatment; psychological/sexual evaluations; no contact with the victim and only supervised contact with his other child and no contact with any female minor child without an adult over twenty-one years of age supervising and who was aware of the charge and offender's probation status.

Subsequently, the offender's probation was terminated early by the Florida Court on January 23, 1998. The Court's termination order noted that it had reviewed the letter and opinion of Mental Health Services, recommending early termination of probation in that offender had complied with his alcohol treatment, addressed his depression, was forthright regarding his sexual misbehavior and accepted full responsibility and placement in the "FDLE sex offender [*2]registry".

At the time of his plea the offender was required to register under Florida's Sexual Offenders Laws F.S.A. §§ 775.21(6); 943.0435.

The offender now lives in New York State and the New York State Board of Examiners of Sex Offenders ("Board") argue that due to the offender's Florida guilty plea and the fact he was required to register as a sex offender in Florida he must also register in New York under its Sexual Offenders Registration Act (SORA). see Corrections Law ("CL") §168-k(1).

The Board also assigns a total risk factor of "65 " points which is a presumptive risk level of "1"(Low). However, the Board requests a departure to a Level "3" (High) due to the offender's two other reported contacts of a sexual nature.

A hearing was held on November 6, 2003, to determine, pursuant to CL §168-k, the duration of registration, level of notification [CL §168-l(6)] and whether or not the offender should be designated either as a sexually violent offender, predicate sex offender or sexual predator [CL §168-a(7)]. The Court notes that the Board found that the offender did not require any such designation.

The District Attorney is not seeking a determination different from the recommendation of the Board. Therefore, the People are not required to send the offender notice required under CL §168-k(2).

The offender opposes the Board's determination on two grounds. First, registration is not required in New York as he was not a convicted sex offender as required under CL §§168-a and 168-k, because at the time of his plea in Florida the Court withheld an adjudication of guilt and sentence and instead placed him on probation which was terminated early due to successful completion of the special conditions. Offender asserts that CL §168-a(1) defines a sexual offender as an individual "convicted" of a specified offense but a conviction set aside pursuant to law is not considered a conviction for the purposes of the SORA. Offender concludes that the withholding of an adjudication of guilt and sentence in Florida is tantamount to the setting aside of a conviction in New York which does not require registration.

A conviction in Florida for the purposes of registration means a determination of guilt which is the result of ... the entry of a plea of guilty ... , regardless of whether adjudication is withheld. F.S.A. §§775.21(2)(c); 943.0435(1)(b). And in New York a conviction is defined, among other things, as the entry of a plea of guilty. CPL §1.20(13).

Clearly, the offender's Florida Conviction is the type of offense requiring registration under CL §§168-a(2)(b) and 168-k(1).

Specifically, the offender pled guilty to fondling the breasts of a female under the age of fourteen over a period of two to three years. That conduct is similar to the New York Crimes of Forcible Touching (PL §130.52) and Sexual Abuse in the Third Degree (PL §130.55).

In addition, since the offender was required, at the time of conviction, to register in Florida for a felony conviction he would be required to register in New York. CL §§168-k(1) and 168-a (3)(b).

It is also of no consequence that Florida's sexual offender law has recently been determined to be unconstitutional. Espindola. State, 855 So. 2d 1281 (October 22, 2003). This does not negate the fact that the offender pleaded guilty to a crime in Florida which qualifies as a sex offense in New York. CL §168-a(2)(b). [*3]

The offender's second ground for opposition is that the Board/People have failed to show, by "clear and convincing evidence", that a departure from a Level "1" to Level "3" is warranted.

The Board, appearing by the district attorney, bears the burden of proving the facts supporting the determination by clear and convincing evidence. CL §168-k(2).

Here, the presumptive risk level is "1" resulting from a risk level score of "65" points. However, the Court may depart from it if special circumstances warrant. But, there may not be a departure from the presumptive risk level unless the Court concludes there exists an aggravating or mitigating factor of a kind or to a degree not otherwise adequately taken into account by the guidelines.

In so doing, the Court must look not only at the conviction but must make an over-all assessment including review of the entire case file to determine what has occurred, the victim's statement, the evaluative reports, and information from any other reliable source.

The SORA was established to give guidelines and a process to assess the risk of a repeat offense by a sex offender and the threat posed to public safety. CL §168-l(5).

The Risk Assessment Guidelines and Commentary make it clear that the fact that a person is arrested or indicted for an offense is not by itself evidence that the offense occurred. By contrast, the fact that a offender was not indicted for an offense may be strong evidence that the offense did not occur. Therefore, the Board or Court should be reluctant to conclude that the offender's conduct involved offenses or elements of an offense when not formally charged.

The People and Board in the case at bar point out that the 1995 investigation led to the discovery of two other possible victims involving incidents prior to his plea. One alleged incident occurred sometime in 1992 involving a mentally disabled neighbor of the offender. She alleged that the offender entered the house in which she was babysitting under false pretenses and fondled her breasts.

It was noted that at the time of the 1995 interview the female didn't think she could remember what the man looked like if shown a picture. No charges were brought. The other incident occurred sometime in 1994 and 1995 when offender allegedly fondled his seventeen year old daughter. No charges were brought. There is no record as to whether or not the offender admitted to these uncharged incidents. In addition, the case summary notes a New York arrest in 1981 for Assault in the Second Degree, but no disposition was reported or any underlying facts set forth.

The case summary does point out that the offender was a patient at mental health services for approximately twenty-four months as a condition of his probation and those records indicate that he had been forthright from the beginning about his sexual misbehavior and accepted full responsibility as well as the punishment and consequences.

The Court, based upon the hearing, the case summary and attachments, the offender's criminal history, the assessment instrument and criteria and other materials relevant to the determination makes the following findings of facts and conclusions of law:

1.That the offender, Robert L. Mitch, was born September 11, 1957. He was convicted in the State of Florida of the second degree felony of lewd assault upon a female under fourteen years of age in the State of Florida on September 14, 1995, whereupon his adjudication of guilt and imposition of sentence were [*4]withheld and he was placed on probation for a period of three years. On January 23, 1998 he applied for and was granted early termination of his probation for having complied with all the special conditions of probation including successful completion of alcohol; "psycho/sexual treatment"; Mental Health counseling and no further contacts with the law.

2.That Robert Mitch is a certified sex offender as defined in CL §168-a(1).

3.That over eight years have past since his plea of guilty and there is no proof of his having re-offended.

4. That the offender has only been convicted for the subject crime.

5.That the risk assessment instrument scores of "10" points for sexual contact under the clothing (I.2.); "20" points each for duration of offense conduct with the victim (I.4.) and age of the victim (I.5.), and "15" points for alcohol abuse (II.11.) totaling "65" points have been supported by clear and convincing evidence.

6.That although the Board by the People recommends a departure from a risk Level "1" to a Level "3", the reasons for the departure are based on statements of others who were allegedly fondled by the offender prior to offender's plea. No charges resulted and the incidents occurred during a period when abuse of alcohol was apparently a major part of the offender's life. Furthermore, the offender successfully completed his special conditions which reportedly dealt successfully with his alcohol, sexual misconduct and mental health issues. In addition, it has been over eight years since the subject offense with no proof of offender re-offending. The People have not presented, by clear and convincing evidence, a satisfactory reason or compelling circumstances for departure upward.

Therefore, based upon the foregoing, the offender has a total risk factor score of "65" points or a Level "1" indicating the risk of repeat offense by the offender is low; thus requiring registration and verification for a period of ten (10) years from the initial date of registration to wit: December 19, 2003.

NOW, based upon the foregoing it is determined and ordered that the offender's risk level shall be "1", and it is further

ORDERED, that even though the offender was convicted of a felony in Florida and was required to register as a sex offender, the Court determines that based on the record and the Board's recommendation of no designation the offender does not require designation as either a sexual violent offender, predicate sex offender or sexual predator as defined in CL §168-a(7).

ORDERED, that the Clerk shall forward a copy of this order to the Sex Offender Registry Unit at the Division of Criminal Justice Services, the District Attorney, offender's counsel and the offender.

The foregoing constitutes the risk level assessment, determination and order of the Court.

SO ORDERED.

Dated: December 19, 2003

W. Patrick Falvey

Yates County Judge [*5]

Decision Date: December 19, 2003