People v Houston

[*1] People v Houston 2013 NY Slip Op 50426(U) Decided on March 20, 2013 Supreme Court, Kings County Dwyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2013
Supreme Court, Kings County

The People of the State of New York

against

Dwayne Houston, DEFENDANT.



3230/2011



For Defendant:

Carol Schajer, Esq.

P.O. Box 515

Jericho, NY 11753

(516) 932-7250

For the People:

Nada Abdelhadi, Esq.

Kings County District Attorney's Office

350 Jay Street

Brooklyn, NY 11201

(718) 250-2378

Mark R. Dwyer, J.

Defendant stands convicted, after a guilty plea, of Sexual Abuse in the Second Degree, a Class A misdemeanor. Defendant has served his prison term, and is before the court for a determination of his status with respect to the Sex Offender Registration Act ("SORA"). Defendant will be subject to more, or less, onerous requirements under SORA, depending on [*2]whether he is classified as a level 3, level 2, or level 1 offender.

A

Defendant was indicted on two counts for Criminal Sexual Act in the First

Degree and also for other related crimes. The People alleged that on two dates in 2010 defendant, a 19 year old employee of a day-care center, engaged in oral sodomy (mouth to penis) with an eleven year old girl in his care. On December 2, 2011, defendant pleaded guilty to Sexual Abuse in the Second Degree in full satisfaction of the indictment. On January 18, 2012, defendant was sentenced to a prison term of one year.

SORA imposes obligations on convicted sex offenders. Those obligations vary based on the defendant's SORA classification, which is determined by evaluating his background and the nature of his offense under standards promulgated by the New York Board of Examiners of Sex Offenders. See Correction Law Section 168-l. In this case the People assert that defendant should be classified a "level 3" offender, and be subject to the maximum obligations. Defendant asserts that he instead should be classified a " level 1" offender.

SORA classifications are based on how many "points" a defendant is assessed. Points are potentially assessed based on many "factors." A defendant

with 70 or fewer points is presumptively a level 1 offender. Being assessed from 75 up to 105 points presumptively makes a defendant a level 2 offender. A defendant with 110 or more points is a level 3 offender. In this case, the People argue that defendant should be assigned 120 points. The defense position is that

an assessment of 65 points is appropriate.

Both sides agree that defendant should be assessed 20 points because, at the time of the crime, the victim was less than 16 years old (factor 5). Both sides agree that defendant should be assessed 10 points because his "first act of sexual misconduct"the crime in this casewas committed when he was under the age of 21 (factor 8). And both sides agree that defendant should be assessed 15 points because he was released without supervision (factor14), and 10 points because his post-plea statements show that he has not accepted responsibility for his actions (factor12).

Defendant asserts as well that he should be charged 10 points for "contact under clothing" (factor 2). The People argue that defendant should instead be assessed 25 points for deviate sexual intercourse (factor 2). The People would also assign defendant 20 points for engaging in a continuing course of sexual conduct (factor 4) and 20 points because he exploited a "professional" relationship with the victim (factor 9).

B

This court and the parties agree that defendant should be charged with 55 points: 20 points on account of the victim's age (factor 5); 10 on account of defendant's age at the time of his first sex crime (factor 8); 10 on account of defendant's failure to take responsibility for his actions (factor 12); and 15 on account of his unsupervised release (factor15). The evidence before the court readily establishes that defendant was 19 at the time of the offense, and that his [*3]victim was 11. Defendant is currently denying the sexual conduct alleged by the People-though he admitted it in the pastand thus he is, as defense counsel concedes, not taking responsibility for his actions. See, e.g., People v.Vega, 79 AD3d 718 (2d Dep't 2010). And it is undisputed that, at the end of his one-year misdemeanor prison term, defendant is not subject to supervision.

The court rejects the People's view that defendant is chargeable with 20 points for abusing a "professional" relationship with the victim. Defendant was not the victim's priest, her dentist, her teacher, or her pediatrician. He was a 19 year-old employee of a child care facility, a "camp counselor" responsible for watching his charges and serving them food. There is no evidence that he was licensed or trained for his position, was paid a "professional" salary, or was in possession of any unusual skills. Defendant was, in essence, a babysitter. This court concludes that the Board of Examiners had more in mind, when it found that the community needed extra protection from defendants who abused "professional" relationships with victims. See People v. Stein, 63 AD2d 99 (4th Dep't 2009).

C

The core dispute between the parties concerns an additional 45 points which the People argue, and the court finds, are also chargeable: 25 for deviate sexual intercourse (factor 2), and not just 10 points for "contact under clothing"; and 20 for a continuing course of sexual misconduct (factor 4). The grand jury minutes and defendant's admissions in the probation report provide clear and convincing evidence that defendant caused the victim to fellate him, and the grand jury minutes contain clear and convincing proof that defendant not only did so on two occasions, but also that he and another young boy took turns with the victim on the second occasion.

Defendant contends that the victim was not credible, and that an Assistant District Attorney earlier assigned to the case so believed. That prosecutor did, on an early occasion, prepare a Risk Assessment Instrument which did not assess points for deviate intercourse or a course of sexual misconduct. This court concludes, however, that the People are not bound by the position taken by the prosecutor who earlier was assigned to the case. Moreover, the court believes that early position to be inconsistent with the evidence, including defendant's subsequent admission to the Probation Officer who prepared the pre-sentence report that the victim performed oral sex on him.

Nor is it clear, as defendant speculates, that the prosecutor did not believe the victim was credible. Neither party has presented an explanation from the prosecutor concerning the Risk Assessment Instrument. But she may simply have been mistaken about what factors can be relied upon after the defendant has entered a plea to a lesser charge than the most serious ones. In any event, the prosecutor assigned to a case does not make determinations of witness credibility and evidentiary weight. That ultimately is a task for the court, after the record is fully made and after both sides have taken their final positions.

The court concludes that defendant must be charged with 100 points. That places him presumptively at level two on the SORA scale.[FN1] [*4]

D

Defendant asks that this court grant him a discretionary downward departure to level one on the SORA scale. See People v. Wyatt, 89 AD3d 112 (2d Dep't 2011). He relies primarily on the report of a forensic psychologist who examined defendant, using the "Millon Clinical Multiaxial Inventory," a questionnaire, and the "Static-99." The psychologist concluded, inter alia, that there is only a .06 likelihood that defendant will commit another offense in the next five years and only a .07 likelihood that defendant will commit another offense in the next 15 years.

This court declines to grant a downward departure. Pursuant to a legislative directive, the Board of Examiners of Sex Offenders has promulgated a binding method of assessing the risk of re-offense. Defendant's psychiatrist has simply attempted to substitute another method of assessing that risk in this case. The court cannot accept defendant's invitation to disregard the scheme established by the legislature.

That is of course not to say that a downward departure should never occur. But such departures are warranted only by the existence of one or more particular mitigating factors that are not properly taken into account by the SORA guidelines. People v. Wyatt, 89 AD3d at 119-20. Defendant has not identified any such factor; he has simply submitted a psychologist's opinion of the risk that defendant will re-offend.

Defendant has cited this court's decision in People v. Yen, 33 Misc 3d 1234A, 943 NYS2d 794 (Sup Ct Kings Co 2011), but that case stands in marked contrast to this one. There this court did consider an expert opinion on the risk that defendant would re-offend. But the court did so in the context of a finding that certain factors created for the "usual" sex offender, concerning the number of victims, the young age of victims, and the status of victims as "strangers," do not

fairly and properly apply where the defendant's crime was the possession of child pornography. Indeed, the Board of Examiners has now expressed similar views.

See People v. Antoine, 37 Misc 3d 474, 477-78 (Sup Ct Kings Co 2012). Defendant has not shown that any particular factor is unreliable under the circumstances of this case.

***

This court therefore will classify defendant as a level two offender.

SO ORDERED. [*5]

E N T E R:

_______________________________MARK DWYER

Justice of the Supreme Court

March 20, 2013 Footnotes

Footnote 1: At this court's SORA hearing, defendant presented the testimony of his mother that the Assistant District Attorney originally assigned to the case assured the defense at the time of the plea that defendant would be a level one offender. This court expresses no view as to that testimony. If the People did make such a representation it might have an impact on whether the plea was proper, but could not impact on this court's SORA determination. Defendant has not sought to withdraw his guilty plea.