People v Youngs
Annotate this CaseDecided on November 14, 2008
Yates County Ct
The People of the State of New York,
against
Steven L. Youngs Convictee.
92-31
APPEARANCES:
Hon. Susan H. Lindenmuth
Yates County District Attorney
Counsel for the People
LaDuca Law Firm, LLP
(John J. LaDuca, Esq., of counsel)
Counsel for the Convictee
W. Patrick Falvey, J.
A risk level redetermination hearing was held on September 2nd and October 24,
2008, pursuant to the Stipulation of Settlement (hereinafter referred to as the "Stipulation") by the New
York State Solicitor General that level 2 risk offenders be given another reclassification hearing. The
Stipulation was made while the case of Doe v. Pataki, 481F 3d 69 [2d Cir 2007] was on
appeal.
Convictee also petitioned for relief from his duty to register under Corrections Law
§168-o but subsequently withdrew this request.
The convictee was found guilty on November 16, 1993 of one Count of the class E felony of Rape in the Third Degree [PL §130.25(3)] and was sentenced on February 23, 1994, to a term of five years probation and four (4) months local incarceration. This crime occurred in November 1991. He was also acquitted of the remaining count of Rape in the Third Degree involving a different time (August, 1991) with the same victim. The convictee was assigned a risk level of "2" on December 19, 1997.
Subsequently, an order was entered on September 28, 2004 setting convictee's risk level at "2" as convictee chose not to challenge his risk level after notice of his right to a Risk Level Redetermination Hearing pursuant to the Stipulation of Settlement in Doe v. Pataki, 96 Civ. 1657 [*2](DC).
The District Attorney presented a new risk assessment instrument in accordance with paragraph 10 of the Stipulation of Settlement of 2004 setting forth a risk level of level "2". Risk Factor points were assessed as follows: I. Current Offense, paragraph 1 (use of violence) 10; paragraph 2 (Sexual contact-intercourse) 25; paragraph 4 (duration of offensive/conduct with victim) 20; paragraph 5 (age of victim) 20; II. Criminal History, paragraph 11 (alcohol abuse, history of abuse ) 15; III. Post Offense Behavior, paragraph 12 (acceptance of responsibility - not accepted responsibility) 10 for a total risk factor score of 100. The District Attorney indicated a departure was not warranted.
Both counsel and the convictee were given the opportunity to be heard.
Convictee opposes the assignment of 10 points under paragraph 1 based on the legal definition of forcible compulsion as found in Penal Law §130.00(8) and McKinneys Commentaries. Convictee asserts that the statements by the victim fall short of the statutory definition of forcible compulsion. Furthermore, the proof of the victim drinking in excess (Exhibits A, pp 6-7 and 2, pp.66) did not establish physical compulsion. As to 25 points under paragraph 2 convictee suggests that the Court should depart downward because the sexual intercourse was due to the victim's age this being the only reason for her inability to consent. In addition 25 points results in an over assessment of the offender's risk to the public safety as this factor deals with the offender's danger to the community.Convictee argues that 20 points under paragraph 4 was incorrect in that he was convicted of only one act, and acquitted on the remaining count. Therefore, any other act should not be used against him. Convictee also argues that 15 points under paragraph 11 is incorrect in that the post offense behavior of DWI is not applicable in this redetermination proceeding.
There is no dispute to 20 points under paragraph 5 regarding the victim's age.
The convictee also asks for a departure downwards from the presumptive risk level
of "2" arguing that there are special circumstances warranting a departure.
Evidence of risk points can be derived from the sex offender's admissions; victim's statements; evaluation reports of the supervising probation officer, parole officer, corrections counselor; or from any other reliable source. Notably, the Board is not limited to the crime of conviction, but may consider the foregoing in determining an offender's risk level. Likewise, the fact that an offender was arrested or indicted for an offense is not by itself competent evidence that the offense occurred. By contrast, the fact that an offender was not indicted for an offense may be strong evidence that the offense did not occur [paragraph 7 of the Risk Assessment Instrument (RAI) Guidelines and Commentary (November, 1997)].
The Court, based upon the hearing, exhibits, pre-sentence reports, criminal history, new risk assessment instrument, and other materials relevant to the redetermination makes the following findings of fact and conclusions of law:
1. Convictee, Steven L. Youngs (born 1957) was thirty -four years of age when he engaged in sexual intercourse with a female (his sister-in-law), who was less than seventeen years of age to wit: 16, (DOB: 11/18/1975). He was found guilty (November 16, 1993), after jury trial, on one count of Rape in the Third Degree, and was sentenced to five years probation and four months incarceration in the Yates County Jail. He was also acquitted on one count of Rape in the Third Degree. [*3]
2. Factors:
a) Factor One: Use of Violence (Forcible compulsion).
The People assess 10 points for forcible compulsion based on the victim's statements, her testimony at trial and transcript of monitored telephone conversation between victim and convictee. See Youngs v. Division of Probation and Correction Alternatives, 175 Misc 2d 51, 54.
On review of the record upon which the People made its determination the Court finds that the assessment of points for this factor was not an abuse of discretion nor was it arbitrary or capricious. The sworn statement and trial testimony of the victim (Exhibits 1 and 2) show that the convictee forced his sister-in-law's legs apart and held her down at the time of the November 1991 incident and at other times including August of 1991. The People assert that during the taped conversation between the victim and the convictee, the convictee replied, "Yea" to the question, "Well remember last August the first time you had sex with me?" nor did he deny or object when the victim stated, "You took advantage of me by giving me that vodka to drink, and then forced yourself on me." (Exhibit 3, p.1).
The Court notes that the current verison of the RAI repealed the statutory rape exclusion found in
the original RAI Guidelines (January 1996) in favor of downward departures in appropriate cases.
Under the guidelines the Court may choose to depart upward where it is clear that an offender intended
to rape his victim or if the Court concludes that the lack of points in this category results in an under
assessment of the offender's actual risk to public safety.
b) Factor Two: Sexual Intercourse.
The Court concludes that the People correctly assessed 25 points for this factor. The Guidelines (November 1997) state in part that the Court may depart downward in those incidences where (i) the victim's lack of consent is due to her inability to consent by virtue of age and (ii) scoring twenty-five points in this category results in an over assessment of the offender's risk to public safety. The proof presented showed that there was sexual intercourse and the convictee did force himself upon the victim.
c) Factor Four: Continuing Course of Sexual Misconduct.
The convictee was acquitted on Count One, Rape in the Third Degree, which involved an incident (in August, 1991) with the same victim. However, the convictee was convicted on Count Two, Rape in the Third Degree involving an incident in November of 1991.
Of crucial significance in this determination is the convictee's own statement to the victim in the recorded telephone conversation (Exhibit 3, p.1) prior to his arrest. There the convictee acknowledged first having sexual intercourse with the victim in August of 1991. In addition, the victim's written statement of July 15, 1992 (Exhibit 1) and Trial Testimony (Exhibit 2) reflect other incidences of sexual intercourse including August, 1991.
The convictee argues that since he was convicted of only one act, there was no continuing course of conduct.
However, the RAI and Commentary (November, 1997) allows the District Attorney to review the record despite the acquittal. This Court cannot say, that the People's determination to assess points for this factor was arbitrary and capricious or an abuse of discretion.
Thus, upon the entire record, The People's determination that there was clear and convincing proof of two incidents of rape is not arbitrary or capricious. Youngs v. Division of Probation and Correction Alternatives, 175 M3d 51, 55. [*4]
d) Factor Five: Age of Victim.
It is not in dispute that 20 points should be levied as the victim was age sixteen at the time.
e) Factor Eleven: Drug/alcohol abuse.
There was proof at the hearing that since his conviction for rape the convictee plead guilty to Driving While Intoxicated (a misdemeanor) on April 17, 2002 (Exhibit 5). His blood alcohol content was .21% (Exhibit 6). Paragraph 12 of the Stipulation of Settlement states that evidence of the convictee's behavior since his initial registration shall be considered pertinent and be given appropriate weight for the redetermination. And the Court should consider the extent, if any, to which the convictee's behavior since his initial registration makes the risk of reoffense more or less likely. Here the convictee incorrectly argues that the post offense behavior is not applicable in this redetermination hearing. Furthermore, the People have also shown that the defendant gave alcohol, including vodka, to the victim, on at least one occasion (Exhibits 1, 2 and 3); as well as his statement in his pre-sentence report (Exhibit 4, p. 5) to consuming alcohol approximately one day per week.
The Court is satisfied that alcohol abuse was proven by clear and convincing evidence as a risk factor.
f) Factor Twelve: Not accepting responsibility.
The People have correctly shown 10 points as the convictee has never admitted that he committed the act or accepted responsibility as shown through Jeffrey Snyder, the convictee's former probation officer (Exhibit 7) and the pre-sentence report (Exhibit 4, p.6).
3. Based on the record of the proceedings, the Court finds that the People have established facts by clear and convincing evidence which supports the assessment of 100 points and a risk level "2".
4. The convictee requests departure downward to a level "1". Convictee presented proof of being married for eighteen years with a ten year old son with whom the convictee is actively involved in his activities. The convictee also testified to his community involvement citing membership in various organizations, such as the Elks Club, Sons of the American Legion, Duck Hunters and Moose Club. He also volunteers at the Keuka Care Comfort Home, a facility for dying individuals. At the time of the DWI he had a substance abuse evaluation and no treatment was recommended. He did not violate his probation, and was granted a Certificate of Relief from Disabilities to hunt. Convictee also argues that it has been seventeen years since his conviction. Therefore, his likelihood of re-offending is low based on what he has done since the time of the conviction.
5. The convictee also presented an assessment (Exhibit B) by Santo W. Bentivegna, Ph.D, the convictee's psychologist since August 23, 2006. The convictee requested an assessment regarding convictee's personal physiological/mental state which opined that convictee's "at risk-ness" toward the repeat commission of a sexual offense and violence is "low". However, Mr. Bentivegna was not called to testify and his report is based on self reporting by convictee that he was convicted of statutory rape on or about 17 or 18 years ago. Furthermore, it does not specify that the convictee took responsibility for his acts but only states, "I am of the belief and understanding that all requirements placed upon him at the time have now been met." The Court does not accord any weight to this report. People v. Puner, 11 M3d [*5]1083(A), 2006 WL 1045060 (NY Co. Ct.)
6. According to the RAI Guidelines and Commentary(November 1997), the Court needs to and can look at all circumstances, not limited to the crime of conviction. This means one may look not only at the time of conviction and the situation as it then presented itself, but also at the time of the risk assessment to determine risk level and examine all facets of the convictee's behavior while on probation, and all aspects of his release.
7. Clearly, there may be a departure upward or downward when it is found by clear and convincing evidence that there is an aggravating or mitigating factor to a degree not otherwise adequately taken into account by the guidelines. The risk level calculated for aggregating the risk factors from applying the overrides is "presumptive" only because the Court may depart from it if special circumstances warrant.
8. The RAI adequately takes into account the various factors involved with this particular convictee. The Court has considered that the convictee is near the highest end of the Risk Assessment, ie, "105" points for a Level "2". Very instructive is the fact that the convictee was convicted of a new crime (DWI) in 2002 and he has not taken responsibility even for the act which he was convicted. In light of the foregoing, the fact that the incident happened seventeen years ago; the convictee having a positive relationship with his young son; is actively involved in the community; successfully completed probation and has resided with his wife for eighteen years are laudable but the Court finds that the convictee's reasons for a downward departure are not of the kind, or to a degree, not otherwise adequately taken into account by the guidelines to justify a departure downward (cf. People v. Abdullah, 31 AD3d 515).
9. A copy of this redetermination decision, according to the Stipulation, will be attached to the Order providing for a sex offender risk level of "2" under the redetermination proceeding pursuant to Stipulation of Settlement in Doe v. Pataki, 96 Civ. 1657 (DC) and the Clerk shall forward a copy of same to the convictee, his attorney; Sex Offender Registry Unit at the New York State Division of Criminal Justice Services (Sex Offender Registry); the Legal Aide Society, New York, New York, attention: SORA Defense Unit (CDD); the Yates County District Attorney.
10. This Redetermination Decision, separate Order and proceedings are to be filed with the Yates County Clerk.
11. The foregoing constitutes the Decision and Judgment of the Court.
12. Court's Order to be attached.
Dated:November ____, 2008.
____________________________________
W. Patrick Falvey
Yates County Judge
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