People v Taylor

[*1] People v Taylor 2010 NY Slip Op 50510(U) [27 Misc 3d 1201(A)] Decided on March 15, 2010 Supreme Court, Westchester County Cohen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 15, 2010
Supreme Court, Westchester County

The People of the State of New York

against

James Taylor, Defendant.



513/1975



For the People:

Hon. Janet DiFiore

District Attorney of Westchester County

By: Frederic I. Green, Assistant District Attorney

111 Dr. Martin Luther King, Jr., Blvd.

White Plains, New York 10601

For the Defendant:

Jeanne E. Mettler, Esq.

20 Woodsbridge Road

Katonah, New York 10536

Jeffrey A. Cohen, J.

At approximately 4 a.m., on May 2, 1975, the then 21 year-old defendant, James Taylor, along with three other males, broke into the New Rochelle home of a purported drug dealer, James, where only his wife and three daughters, ages two, five and seven, were sleeping, the two younger girls with their mother. All four intruders were armed. All four wore masks and demanded money. When none was forthcoming, they threatened to kill the children. When told again that there was no money to be had, they threatened to kidnap the baby so that James would pay to get her back. One of the intruders then took the mother into the bathroom adjoining her bedroom where he closed the door, [*2]turned off the lights, put his gun to her head and said, "I'll blow your brains out if you don't tell us where you keep your money." The thieves ransacked the house and bound and gagged the mother. They then locked her in a closet and made good on their threat to take the baby: when she freed herself, she discovered the two year-old was gone. Finding by happenstance the only telephone that the armed intruders had not disabled, she immediately called the police.

The police responded at once. Not far from the scene, fellow officers noticed a blue Datsun being driven by the defendant and occupied by another male and a young child, who was peering from the rear window. They tried to effectuate a stop of the vehicle and a chase ensued, during which speeds of nearly 100 miles per hour were reached. Ultimately, the Datsun spun out and the police cruiser struck a light-pole. A foot-chase followed, culminating in the defendant's arrest. Police also removed the frightened, but unharmed two year-old child from the Datsun and returned her to her mother.

Based upon evidence proffered at a non-jury trial, the defendant was convicted on December 9, 1975, of kidnapping in the first degree, Penal Law § 135.25; robbery in the first degree, Penal Law § 160.15; criminal possession of a weapon in the third degree, Penal Law § 265.02; and burglary in the first degree, Penal Law § 140.30. He was then sentenced to a controlling term of incarceration of from 20 years to life imprisonment on January 15, 1976. After his release from prison on November 27, 1995, the New York State Division of Parole classified the defendant as a Level Three sex offender under the then recently enacted Sex Offender Registration Act, Correction Law Article 6-C ("SORA.") Subsequently, the defendant was accorded a redetermination hearing pursuant to the Stipulation of Settlement in Doe v Pataki, 96 Civ. 1657 (DC). After proceedings on March 1, 2005, the Honorable Rory J. Bellantoni of the Westchester County Court found, on July 1, 2005, that because the SORA statute was unconstitutional as applied to the defendant, he would not be subject to its classification and registration requirements. On April 10, 2007, the Appellate Division - Second Department reversed that decision and remitted the matter for a new SORA hearing. See People v Taylor, 42 AD3d 2007 (2nd Dept), leave dismissed 9 NY3d 887 (2007). The matter was thereafter assigned to this court.

The parties initially appeared in connection with this case on March 18, 2008. Thereafter, on April 22, 2008, the prosecutor served the defendant with a new risk assessment instrument, which he then revised on or about April 28, 2008. By notice of motion dated May 12, 2008, the defendant moved this court for an order dismissing the instant proceeding on the ground that to require the defendant to register as a sex offender implicates a fundamental right and violates his constitutional rights; declaring SORA unconstitutional as void for vagueness; and dismissing the instant proceeding because requiring the defendant to register as a sex offender would violate his right to equal protection under the law. On August 1, 2008, the court advised the parties that this motion [*3]was being denied and issued a written decision setting forth in full the basis for its ruling on December 2, 2008. Following a number of additional adjournments, a hearing to determine the appropriate classification for the defendant was ultimately held before this court on February 26, 2009. The People recommended that the defendant be classified as a Level Three sex offender. The defendant again objected to the entire proceeding, asserting that he did not commit a sexual offense. However, the Court of Appeals recently held that compelling a defendant to register as a sex offender even though there is no proof that the crime triggering the registration requirement —kidnapping— involved any sexual act or sexual motion does not violate his constitutional rights. See People v Knox, 12 NY3d 60, cert denied ___ US ___, 130 S Ct 552 (2009). Accordingly, after due consideration of all of the evidence, including the exhibits and evidence adduced at the hearing, case law and arguments of counsel, the court concludes as follows.

The parties agree and the court concurs that no points are warranted under risk factors two, sexual contact with victim, there being no evidence of any sexual contact in this case; three, number of victims, there being one kidnapping victim; four, duration of offense - conduct with victim, there being no evidence of a continuing course of sexual misconduct; six, other victim characteristics, there being no evidence that the kidnapping victim suffered from mental disability, incapacity or physical helplessness; eight, age at first act of sexual misconduct; the defendant being 21 years-old at the time of the kidnapping; ten, recency of prior felony or sex offense, the defendant not having a prior conviction for a felony or sex offense within the preceding three years; 14, supervision, per the Stipulation of Settlement in Doe v Pataki, 96 Civ. 1657 (DC); and 15, living/employment situation, there being no evidence that the defendant's living or employment situation is inappropriate.

In addition, the court agrees with the People and the defendant does not contest, apart from his previously rejected contention that this matter does not involve a sexual offense, see supra., that, based on all of the evidence before the court including the exhibits and that adduced at the hearing, 30 points should be assessed to the defendant for risk factor five, age of the victim, the complainant being two years-old at the time of her kidnapping; and 20 points for factor seven, relationship with victim, the defendant and the victim being strangers to each other. The sum total of these points equals 50, well within the parameters for a Level One offender.

However, the point assessment for five risk factors are in dispute: one, use of violence; nine, number and nature of prior crimes; 11, drug or alcohol abuse; 12, acceptance of responsibility; and 13, conduct while confined/supervised. It is, of course, the People's burden to show by clear and convincing evidence that the requested number of points should be attributed to the defendant in these categories. See, e.g., Correction Law § 168-n(3); People v Taylor, 48 AD3d 775, 775-76 (2nd Dept), leave denied 10 NY3d 711 (2008), citing People v Lawless, 44 AD3d 738 (2nd Dept), leave denied 9 NY3d 816 (2007); People v Hardy, 42 AD3d 487 (2nd Dept), leave denied 9 NY3d 814 [*4](2007).

With respect to risk factor one, use of violence, the People maintain that 30 points should be assessed to the defendant because he and the three other intruders were armed with a dangerous instrument, that is a gun, at the time of the kidnapping. In support, they note that the defendant was convicted of criminal possession of a weapon in the third degree, Penal Law § 265.02, and also point to Exhibit 6, the police reports, which state that a S & W .357 magnum six shot revolver, an Astra Unceta CIA automatic 9mm seven shot, a Titan Tiger 38 caliber six shot revolver and a Colt 38 caliber Special six shot revolver were recovered from the Datsun. Id. atp. 5. See also Exhibit 6, p. 9.

The defendant countered that it is not clear from the mother's grand jury minutes, Exhibit 5, whether the defendant in fact had a gun and that the verdict reflected the defendant's culpability as an accessory. However, a review of the grand jury minutes reveals that the complainant-mother unequivocally averred that all four intruders were armed with guns. See id. at p. 2 ("[I] saw four men in the hall facing me with guns. . . . Q. Did all four men have guns? A. Yes.") And, in any event, traditional principles of accessorial liability apply in calculating a defendant's risk level such that points are appropriately attributable even if he was solely accessorially liable. See Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, p. 7 (2006 ed.)("Guidelines")("The guidelines assume that the Board or court will generally apply traditional principles of accessorial liability in calculating an offender's presumptive risk level. See Penal Law § 20.") Accordingly, 30 points are properly scored to the defendant in category one, use of violence.

Next, relying primarily on the defendant's pre-sentence report, Exhibit 2, the People contend that 15 points should be attributed to the defendant for a prior history of crime including a non-violent felony for risk factor nine, number and nature of prior crimes. Specifically, they maintain that the points should be assessed because on November 21, 1971, the defendant was adjudicated a youthful offender following his plea of guilty to a non-violent felony offense. The defendant objected to the assessment of these points on the ground that he was adjudicated a youthful offender and because the adjudication is so remote. The Guidelines, however, state that the term "crime" includes youthful offender adjudications and juvenile delinquency findings as well as criminal convictions. See Guidelines, p. 6, ¶ 10; see also p. 13. In addition, the Guidelines do not make any allowance for the court to elect to score zero points in this category where the prior conduct at issue is in the distant past, see Guidelines, p. 13-14, as they do for example with risk factor 11, drug or alcohol abuse. See Guidelines at p. 15. This is likely due to the fact that the proximity of the prior criminal conduct is directly considered in category ten, recency of prior offense. No points are attributable to an offender for risk factor ten where, as here, the prior crime occurred more than three years before the offense for which he must register. Hence, 15 points must be assessed to the defendant for category nine, number and nature of prior crimes, based on his 1971 youthful [*5]adjudication for a non-violent felony.

Turning now to risk factor 11, drug or alcohol abuse, the People assert that 15 points should be scored to the defendant relying again upon information contained in his pre-sentence report, Exhibit 2, which details his rather extensive treatment for drug abuse. In particular, the defendant's pre-sentence report indicates that he started abusing drugs in 1969. On May 5, 1970, the NACC examining facility certified him as a narcotic addict and in June of 1970, the defendant was treated at the Samaritan Halfway Society for his addiction. In September of 1970, the defendant entered a detoxification program at Interfaith Hospital, where he remained until March of 1971. Additionally, at the time he was sentenced to probation following his 1971 youthful offender adjudication, the defendant was enrolled in Triboro Hospital's Adolescent Drug Treatment Program and the sentencing judge directed that he continue attending this program as a condition of his probation. In September of 1972, the defendant entered Jamaica Hospital's Methadone Maintenance Program, where he remained briefly. On December 12, 1973, the NACC examining facility found the defendant to be non-addicted and on May 2, 1974, the court removed from the terms of the defendant's probation the condition that he receive drug treatment.

While acknowledging his history of drug use, the defendant nevertheless contested the assessment of any points in category 11. Apart from highlighting that the NACC examining facility concluded that the defendant was non-addicted in 1973, and that the sentencing judge removed drug treatment as a condition of his probation in 1974, the defendant noted the absence of any evidence that he required any treatment for drug abuse during the approximately 20 years he was incarcerated. Similarly, there is no evidence that the defendant required or was referred to any type of treatment for drug abuse during the approximately 15 years since his release from prison, including the many years he was under parole supervision. To be sure, his Department of Correctional Services' Program Eligibility Screening & Monitoring sheet does, as the defendant stressed, list him as not addicted. See Exhibit 3, defendant's disciplinary and treatment records, p. 13. Consequently, the defendant asserted that given that he was not using drugs at the time of the instant offense, that his abuse of drugs was in the distant past and that his recent history is one of prolonged abstinence, no points should be attributed to him for risk factor 11.

There is no factual dispute here. Indeed, the defendant credibly testified at the SORA hearing and admitted that he started using heroin at the age of 15 and entered drug treatment at the age of 17. He further acknowledged his need for constant rehabilitation early on in his treatment and that, like most addicts, he entered two or three different programs. Now he only smokes a cigar and wonders how he ever abused drugs. He is not in treatment because he has no need for it. In short, there is clear and convincing evidence that the defendant abused drugs for many years, many, many years ago and absolutely no evidence that he has used drugs since he was incarcerated on this case. In [*6]other words, his more recent history, some 15 years post-incarceration, is one of prolonged abstinence. Under these circumstances, the court can only "[c]hoose to score zero points in this category," See Guidelines, p 15; People v Abdullah 31 AD3d 515, 516 (2nd Dept 2006)(assessment of points for this risk factor "[u]njustified in view of the fact that, at the time of the SORA hearing, the defendant had successfully abstained from any drug or alcohol use for over 15 years"); People v Wilbert, 35 AD3d 1220, 1221 (4th Dept 2006)(no basis to assess points where defendant became a member of Alcoholics Anonymous after his release from prison and had been alcohol free for eight years.)

Next, the People maintain that 10 points should be attributed to the defendant for risk factor 12, acceptance of responsibility in that he has not accepted responsibility for his conduct. They note that when the Department of Probation interviewed the defendant following his conviction after a trial, the defendant stated that he was angry that he had been convicted at all and especially because he was convicted as a principal, see Exhibit 2, p. 3. In addition, the People contend that the defendant's statements to the probation officer reflect a significant degree of minimization of his conduct in this case. For example, the defendant asserted that the police planted keys on his person. See id.

The defendant, on the other hand, averred that he never claimed he did not commit the crimes of which he was convicted, even in his 1976 statement to the Department of Probation. Moreover, the defendant asserted that he made a full and complete acknowledgment of guilt in his March 1, 2005, testimony before Judge Bellantoni, see Exhibit B. Furthermore, in his testimony to this court during his 2009 SORA hearing, the defendant noted that in order to be released to parole supervision, an inmate must accept responsibility for his criminal conduct, and he was granted parole the first time it was available to him.

Notwithstanding the People's claim that even the defendant's remarks to Judge Bellantoni reveal a minimization of his conduct and an attempt to distance himself from his co-defendants, the defendant testified forthrightly before this court as a 54 year-old man, not as the 21 year-old perpetrator and took responsibility for his culpable conduct in this heinous crime. The fact that he sought and indeed still seeks a classification that actually reflects the acts he performed is not to say that he has not accepted responsibility for his conduct. As he averred, he is a kidnapper. He has not sexually offended. To be sure, there have never been any allegations of any sexual overtures, misconduct or motivation against anyone in this case. That the legislature has elected to include kidnapping in the list of offenses for which an offender must register as a sex offender under SORA does not alter this fact.

Furthermore, it is true, as the defendant asserted, that the Parole Board considers whether an inmate has accepted responsibility for his criminal conduct in evaluating whether an inmate is an appropriate candidate for parole supervision. See In the Matter of Flecha v Russi, 221 AD2d 780, 781 (3rd Dept 1995), leave denied 87 NY2d 806 (1996)(Parole Board's denial of petitioner's request for parole not arbitrary and capricious [*7]where it considered, inter alia, petitioner's failure to take responsibility for his deviant behavior); see also In the Matter of Silmon v Travis, 95 NY2d 470 (2000)(Parole Board not precluded from denying parole on the ground that petitioner lacked remorse and insight and accepted no responsibility for crime even though petitioner entered an Alford plea in which petitioner did not admit culpability for charged offense.) That the Parole Board granted the defendant's release to parole supervision the first time he appeared before it is undisputed. Thus, under the totality of the circumstances present here, it cannot be said that the People have established by clear and convincing evidence that the defendant has not accepted responsibility for his actions. No points are warranted for risk factor 12, acceptance of responsibility.

Finally, with respect to risk factor 13, the People assert that the court should attribute ten points for unsatisfactory conduct while confined/supervised. In support, the People proffered Exhibit 3, the defendant's Inmate Disciplinary History, which reveals that over the course of his nearly 20-year imprisonment, the defendant had five Tier II violations, mid-level infractions under the Department of Correctional Services' Three-Tier disciplinary system, see Guidelines, p. 16, n. 9, between February of 1991 and June of 1993.

The defendant opposed the imposition of any points to him in this category asserting that he never had a single Tier III violation, that the violations of which he was culpable were not of a sexual nature, did not entail any violence or physical injury and that the minor punishments imposed for those violations reflect their de minimus nature. More importantly, the defendant noted that he was granted parole on November 27, 1995, following his first and only appearance before the Parole Board and that there is absolutely no evidence indicating that he had any behavioral problems during the 13 years he spent under parole supervision.

Simply put, the evidence does not support a finding that the defendant's conduct was unsatisfactory, particularly given the dearth of any information regarding any misconduct during the 13 years he recently served on parole and that he was terminated from parole supervision in 2008, notwithstanding the imposition of a life sentence. See Guidelines, p. 16("[an offender's] adjustment on probation or parole is unsatisfactory if he has violated a condition of his release.") Notable as well in this regard is the fact that when preparing the risk assessment instrument for the defendant's initial classification under SORA in 1996, the Division of Parole itself recommended that no points be scored to the defendant for category 13, conduct while confined/supervised. See Exhibit A. As a result, no points are justifiably attributable to the defendant for risk factor 13.

The sum of these points equals 95, within the parameters for a Level Two offender; however, the People moved for an upward departure and the defendant sought a downward departure. The People claim that the criminal history section of the risk assessment instrument does not adequately account for the number and nature of the defendant's prior crimes. In addition, they note that although there is only one kidnapping [*8]victim in this case, there were other children in the house and the defendant's conduct endangered them as well. In essence, the defendant counters the risk assessment instrument does not address his circumstances period. He has not committed a crime that encompasses any sexual overtones, let alone act. He has lived a law-abiding, if not exemplary, life since he committed the instant offense some 25 years ago. He is employed and has a seven year-old son, for whom he provides support. Moreover, he is now 55 years-old with the insight and maturity that aging affords. In brief, the defendant asserts that he poses no threat to anyone and to the extent that this court must classify him, he urges that the appropriate level is a Level One.

The court is, of course, the ultimate arbiter of the defendant's risk level classification, see People v Douglas, 18 AD3d 967, 968 (3rd Dept), leave denied 5 NY3d 170 (2005), citing People v Stephens, 91 NY2d 270, 276 (1998), and may exercise its discretion to depart from the presumptive level only upon the existence of clear and convincing evidence that special circumstances exist. See Douglas, 18 AD3d at 968 (citations omitted.) Furthermore, with respect to departures, the Guidelines provides that "[t]he ability to depart is premised on a recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case[]" and that "[g]enerally, the Board or 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, not otherwise adequately taken into account by the guidelines[,]" citing 18 USC § 3553 (federal sentencing guidelines departure provision.) Accord People v Turner, 45 AD3d 747 (2nd Dept 2007), leave denied 10 NY3d 704 (2008).

In the matter at bar, the court finds that the facts and circumstances do warrant a departure downwardly to a Level One. To begin, this court is not unmindful of the irony entailed in having to assess the likelihood that the defendant will reoffend sexually, see Guidelines, p. 2, when the he has never committed a crime involving any actual, intended or threatened sexual misconduct in the first instance. Be that as it may, the People's contention that the risk assessment instrument does not sufficiently address the defendant's prior criminal history is without merit. That history is, as noted earlier, close to 30 years-old, largely occurring when the defendant was a drug-addicted teenager. Its relevance pales in comparison to the defendant's more current conduct: he has lived without incident for over 15 years since being released from prison. Furthermore, while the People argue that the defendant's youthful offender adjudication does not adequate reflect the violence involved in the underlying crime, the pre-sentence report indicates that the victim in that case slipped on wet grass and onto a knife that he had taken from the defendant and thrown to the ground, not that the defendant stabbed the victim. See Exhibit 2, p. 1. Similarly, the defendant's kidnapping of the two year-old child did not pose any greater threat to the two other siblings. Rather, it was the robbery, burglary and weapons offenses that directly endangered the entire household.

On the other hand, it simply cannot be said that the risk assessment instrument [*9]adequately considers the fact that the defendant completed 13 years of parole —and more than two years beyond— without incident. And, as our Court of Appeals has noted, "[c]ommon sense and experience dictate that a defendant's conduct while on parole is a reliable predictor of the risk he poses to society." People v Buss, 11 NY3d 553, 557 (2008). Under this gauge, the defendant poses virtually no risk to society. Accordingly, his application for a downward departure must be granted and the court hereby certifies the defendant as a Level One sex offender. He is thus directed to comply with all appropriate registration provisions, including, but not limited to, those outlined in the Sex Offender Registration Act, see Correction Law Art. 6-C.

The foregoing opinion shall constitute the decision and order of the court.

Enter.

Dated: March 15, 2010

White Plains, NY

__________________________

Supreme Court Justice