People v Struble
Annotate this CaseDecided on December 12, 2006
County Court, Yates County
THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
against
David E. Struble, Defendant.
04-18
Susan H. Lindenmuth
Yates County District Attorney
Counsel for the People
Robert L. Grosper, Esq.
Counsel for the Convictee
W. Patrick Falvey, J.
RISK LEVEL DETERMINATION AND ORDER
W. Patrick Falvey, J.C.C.
The convictee having pled guilty on May 4, 2004, to the crime of Attempted Sexual Abuse in the First Degree in violation of Penal Law §§110.00 and 130.65, a Class E Felony, and
A hearing having been held on November 28, 2006, to determine, pursuant to Article 6-C of the Correction Law, the duration of registration, level of notification and whether or not the defendant is qualified as a sexual predator, sexually violent offender or predicate sex offender and the District Attorney, Convictee's counsel and the convictee each having the opportunity to be heard and the Convictee having disputed the Board of Examiner's recommendation of a Risk Level " 2 ", and the scores under Risk factors: I-2 asserting the contact was only over the clothing not under; I-4 asserting that the duration of the offense was a single event and not a course of conduct; II-9 asserting that the out of state convictions do not constitute a prior non-violent felony and II-11 asserting that there was no history of recent drug and/or alcohol abuse.
Therefore, the Convictee argues that the risk factor score would only total "30" points resulting in a presumptive Risk level of "1".
The District Attorney opposes the Convictee's arguments and urges that if the Court adopts a Risk Level of "1" that this case warrants a departure to a Level "2".
The Court, based upon the pre-sentence report, the victim impact statement, the Sex Offender Risk Assessment Instrument, case summary, the plea and sentencing minutes and other materials relevant to the determination makes the following Findings of Fact and Conclusions of [*2]Law:
1. That the convictee, David E. Struble, born December 29, 1962, engaged in sexual contact with a female who was twelve years old at the time and was convicted upon a plea of guilty to Attempted Sexual Abuse in the First Degree, a Class E Felony (Penal Law §§110.00 and 130.65) on May 4, 2004 and sentenced on July 20, 1004 to serve a maximum of three (3) years and a minimum of one and one-third (1 ) years in state prison.
2. The Court notes in completing the Risk Assessment Instrument, points cannot be assessed for a factor unless there is clear and convincing evidence of the existence of that factor. This evidence can be derived from sex offender's admissions, the victims' statements, the evaluative reports of the supervising probation, parole officer or corrections counselor or from any other reliable source [see People v. Burden, 6 Misc 3d 1033(A)]. Notably, the Board is not limited to the crime of conviction, but considers the foregoing in determining the offender's risk level.
3. That the convictee is a certified sex offender as defined in Correction Law §168-a(1).
4. That the convictee argues that Risk Factor I-2 (sexual contact with the victim) should only be "5" points as the plea minutes indicate that he had the victim place her hand on his penis over his clothing and not under his clothing. The District Attorney asserts that it was under the clothing and worthy of "10" points. However, the plea minutes as well as the Probation Report indicates that the victim had sexual contact with the Convictee over his clothing. Based upon the proof, there is clear and convincing evidence that Risk Factor I-2 is "5" point not "10".
5. As to Risk Factor I-4 (duration of the offense conduct with victim) the defendant argues that he plead guilty to a single act and not a continuing course of misconduct. The District Attorney asserts that by the defendant's admission and the victim impact statement that there was a course of conduct indicating that he tried to touch her breast(s) on a number of occasions and occasionally was successful together with the current offense which would equate to three or more acts of sexual contact over a period of at least two weeks. Here, based upon the Convictee's plea admission, his statements in the probation report and the victim's statement the People have established by clear and convincing evidence that this was a course of continuous conduct meriting a Risk Factor score of "20" points.
6. Neither the Convictee or the People disagree with the awarding of "20" points under Risk Factor I-5 (age of the victim).
7. As to Risk Factor II -9 (number and nature of prior crimes) defendant states that this score should be only "5" points instead of "15" points in as much as the Convictee did not have a prior non-violent felony conviction. The People assert that although the Convictee had no prior New York Felony convictions he had convictions in the State of Texas including the felony of Possession of a Controlled Substance alleging that he unlawfully, intentionally and knowingly possessed a controlled substance, namely Cocaine, weighing less that one gram by aggregate weight, including any adulterants and dilutants. He was convicted on April 3, 1997, to a felony and sentenced to six months in jail as shown by the certificate of conviction from Harris County, Texas. The issue before the Court is whether or not the Texas felony conviction would qualify for consideration as a felony in New York State for the purposes of this risk assessment. The Court notes that the Texas crime for which the Convictee was convicted carried with it a possible maximum sentence of two years incarceration (Texas Penal Law §12.35). The Convictee fails to [*3]establish that the Guidelines promulgated pursuant to Corrections Law §168-1(5)(b)(iii) intended to import the definition of a second felony offender in Penal Law §70.06(1)(b)(i). (See People v. Barnes, 6 Misd.3d 469). The conviction in Texas was for a felony and is therefore relevant under the risk offender assessment. Therefore, the Court finds that the People have presented clear and convincing evidence that "15" points should be assessed for this risk factor.
8. That the Convictee argues that Risk Factor II-11(drug or alcohol abuse) should be assigned "0" points as any alcohol or drug problems that he had were "long ago" and not pertinent or relevant to this current assessment. The People oppose this assertion and request "15" points. The Court notes that the Probation Report shows that the Convictee had 1) a minor marijuana charge in Kentucky; 2) convictions in Texas for Possession of Controlled Substance (Cocaine) on three different occasions; 3) he contracted Hepatitis C due to his past drug use; and 4) he experimented from a young age with marijuana, cocaine, amphetamines, barbiturates and used almost daily from 1983 to 1987 during which time he recalls very little when he used. He now claims that he has been drug and alcohol free since 1997; that he engaged in drug substance abuse counseling in Memphis, Tennessee and participated in therapeutic community counseling through the Texas Department of Corrections.
The Risk Factor guidelines state that this category focuses on the offender's history of abuse and the circumstances at the time of the offense. It is not meant to include occasional drinking but an offender need not be abusing alcohol or drugs at the time of the instant offense to receive points in this category. Therefore, the Court finds that the People have established by clear and convincing evidence that based on the foregoing the Convictee does have a history of abuse of drugs and alcohol as contemplated by the Sex Offender Registry Act and will assign "15" points for this category.
9. That the Convictee has accepted responsibility for his actions and he has successfully participated in a program addressing his behavior, not only his alcohol and substance abuse but sex offender and aggression replacement programing as well. His disciplinary record during his period of confinement has been satisfactory and upon release he will be supervised by parole on a specialized case load.
10. That the victim had filed a victim impact statement with the Court.
11. That neither the District Attorney or Convictee oppose the finding that the Convictee is a Sexually Violent Offender.
12. Based upon the foregoing, there is clear and convincing evidence to designate the convictee as a Sexually Violent Offender and he is also presumed to be a Level "2" Offender based on a Risk Factor score of "75" points.
13. Therefore, after application of the risk assessment criteria of Correction Law §168(l)(5) the Court concludes that the risk of a repeat offense by the convictee sex offender is "moderate".
NOW, based upon the foregoing it is determined and ordered that the convictee's risk level shall be "2" and it is further determined that the defendant is a Sexually Violent Offender, and is so designated requiring life time registration, and it is further
ORDERED, that the Clerk shall forward a copy of this order to the Sex Offender Registry Unit at the New York State Division of Criminal Justice, the District Attorney, convictee's counsel and the convictee. [*4]
The foregoing constitutes the risk level assessment, designation (Article 6-C of the New York State Correction Law), determination and order of the Court.
SO ORDERED.
Dated: December ____, 2006.
_________________________
W. Patrick Falvey
Yates County Judge
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