People v Seroski
Annotate this CaseDecided on January 24, 2014
Supreme Court, Nassau County
People of the State of New York,
against
Matthew Seroski, Defendant.
6X-12
KATHLEEN RICE
District Attorney
Nassau County
Mineola, New York
By Rachel Grinspan, Esq.
Anthony M. La Pinta
Attorney for the Defendant
P.O. Box 11177
35 Arkay Drive
Hauppauge, NY 11788
Angelo A. Delligatti, J.
The Court held a hearing in accordance with the Sex Offender Registration Act (hereinafter SORA) to determine what classification the above defendant would be assessed, pursuant to Article 6-C of the Corrections Law, §168-[a] et seq. The basis of the hearing was the defendant's conviction by way of a plea of guilty in U.S. District Court to a violation of 18 USC § 2252 (a) (4) & (b) (2) (Possession of Child Pornography) on July 21, 2011. The defendant served forty-five (45) days in Federal Prison for the charge and was sentenced to five years of [*2]supervised release, by the United States Department of Probation.It was un-controverted that the defendant's conviction for the crime he plead guilty to requires that the defendant be assessed by this Court in keeping with the requirements of SORA.
Findings of Fact
The defendant's "risk assessment instrument" (hereinafter RAI) scored the defendant with a point total of thirty. This score standing alone classifies the defendant as presumptively a level one sexual offender for registration pursuant to SORA.
Nonetheless, the RAI sets forth in Section B, number four, "Departure," that the defendant should automatically be assessed a level two offender based upon a "clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases [his] ability to control impulsive sexual behavior." The assistant district attorney acknowledges that the Board of Examiners of Sex Offenders failed to delimitate why the defendant should be assessed as a level two sexual offender. The RAI did not ask for an "override" in section A.
Most telling to the Court was the Federal Court's decision when sentencing the defendant on the underlying crime; the Federal Court departed from the Federal Sentencing Guidelines (forty-one (41) to fifty (50) months of incarceration for the crime to which the defendant plead) on the amount of time the defendant was sentenced to be incarcerated. The Federal Court sentenced the defendant to forty-five (45) days, plus five years of supervision.
The Court credits the testimony of Dr. Alexander Bardey who gave a detailed breakdown of his interactions with the defendant and a description of all the documents he used in assessing the defendant pertaining to these proceedings. (It is essential that the Court note that Dr. Alexander Bardey has also been hired as an expert by the Nassau County District Attorney, Kings County District Attorney and the New York State Attorney General.)
Dr. Bardey's testimony established that the defendant has an "absence of any psychopathy." (See, line 2 on pg. 3 of the hearing transcript) What is essential about this analysis per the Doctor's testimony; is that a combination of both psychopathic tendencies and an attraction to minors which lead to lead to the commission "of contact acts or leads to the victimization and the predation on minors," (See, lines 5 & 6 on pg. 31 of the hearing transcript) are not present in the defendant.
Dr. Bardey testified that the defendant benefitted from the sex offender therapy that he has undergone and that the defendant was an "internet offender" as opposed to a "contact offender." Further, Dr. Bardey testified that he a long with two other clinical evaluators found no basis for a diagnosis of pedophilia regarding this defendant.
The drafter of the RAI in this matter is the Board of Examiners of Sex Offenders (hereinafter "Board"), for New York State. The Board is a five (5) member panel appointed by the Governor. The Board prepares the SORA guidelines, determines who must register and when and scores the initial RAI for those who are incarcerated in State or Federal Penitentiary. See Correction Law §168-I [*3]
That initial RAI score is the defendant's presumptive level for SORA purposes. An "override" or "departure" could be requested that would change the level determined by the Board.
It is un-controverted that the Board rated the defendant presumptively at level 1 based on a raw score of thirty (30). Nonetheless, the Board asked that the defendant be assessed as a level two based upon a finding that the defendant is a pedophile.
This Court credits the testimony given by Dr. Bardey in that it takes into account all psychological reports and analysis of the defendant generated both in the underlying Federal Case and in the Board's review of the defendant.
The Court also found it significant that the defendant submitted to two polygraph tests as part of his sexual therapy that showed the defendant was not being deceptive in his answers.
The defining moment in the hearing was when Dr. Bardey testified that. "although they (internet offenders) may have pedophilic or hebephilic tendencies, they are less dangerous because they don't have the impulsive sexual behavior that is described in the Board's position statement." (See, lines 15, 16 & 617 on pg. 38 of the hearing transcript)CONCLUSIONS OF LAW
From the RAI the defendant scored a point total of thirty (30) points making the defendant presumptively a level one offender for SORA purposes.
The initial scoring done by the Board herein serves only as a guide and opinion, similar to a recommendation by the probation department in submitting a sentencing recommendation to a court; see also 83 NY Jur 2d, Penal and Correctional Institutions 319 [2d ed updated 2008]. This Court is not bound by the recommendation of the Board in determining the appropriate risk level of an offender and, in its exercise of discretion, may depart from the board's recommendation from facts and circumstances set forth on the record.
The People herein are asking that the Court for a "Departure" from defendant's initial presumptive level scoring as level one and score the defendant as a level two offender. The People in this application must prove aggravating factors by a clear and convincing evidence that a "Departure" is warranted. See People v. Smith, 78AD3rd 805 (2nd Dept. 2010)
The definition of clear and convincing evidence in New York State is evidence of such a nature as is entirely satisfactory and creates a genuine belief in that what is said is true. In re Katrina M., 227 AD2nd 977 (4th Dept., 1996)
From the record that is before this Court there was no diagnosis of pedophilia from any clinician involved in this matter.
The Court credits the Assistant District Attorney in her zealous advocacy but nonetheless the Board's recommendation of a "Departure" for SORA purposes has not been established to this Court by clear and convincing evidence.
The People failed to proffer any expert medical testimony to support their application. The Court is cognizant that the defendant did exhibit criminally abhorrent behavior in acquiring pornography of children but the basis of the Board recommendation of a "Departure" as set forth in section four of the RAI is as follows: "A clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases [his] ability to control impulsive sexual behavior."[*4]
This has not been shown to this Court by clear and convincing evidence and as such it is hereby ordered that the defendant be adjudicated as a level one sexual offender for SORA registration purposes. The Court finds the remainder of the People's argument not relevant to the present application.
E N T E R:
Dated: January 24, 2014_______________________________
Angelo A. Delligatti, A.J.S.C.
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