People v Outerbridge

[*1] People v Outerbridge 2015 NY Slip Op 50166(U) Decided on February 20, 2015 Supreme Court, Queens County Koenderman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 20, 2015
Supreme Court, Queens County

The People of the State of New York

against

Clinton Outerbridge, Petitioner



1304 / 2007



Attorney for defendant:

Seymour W. James, Jr.

Attorney for the People:ADA Lucinda Suarez
Elisa S. Koenderman, J.

The defendant, Clinton Outerbridge, pleaded guilty to Rape in the Third Degree, Penal Law ["PL"] § 130.25(2) on May 21, 2007 and was sentenced on June 18, 2007 as a second felony offender to two and a half years' imprisonment plus one and a half years' post-release supervision. On May 10, 2010, after a hearing held pursuant to the Sex Offender Registration Act ["SORA"], he was adjudicated a level two sex offender. The defendant now petitions for a downward modification of his risk level, which the People and the Board of Examiners of Sex Offenders ["Board"] oppose. Because the defendant has failed to present clear and convincing evidence warranting a reduction of his risk level, his petition is denied.

On September 26, 2014, the defendant filed and served the instant petition with attached exhibits, including an assessment from a Mitigation Specialist at the Criminal Appeals Bureau of the Legal Aid Society, letters of support from the Executive Director of Shiloh Consulting LLC and various other individuals, and a letter from the defendant expressing remorse for his crime. The Court adjourned for the People to respond and for the Board to submit an updated recommendation. Upon receipt of these materials [FN1] , [*2]the parties appeared and were heard on December 22, 2014. Thereafter, the Court adjourned for decision.

Pursuant to Correction Law ["CL"] § 168-o(2), a sex offender may petition the court which conducted the initial determination for an order modifying his risk level. Once the court receives the defendant's petition, it must forward it to the Board and request an updated recommendation (see CL § 168-o[4]). In contrast to a sex offender seeking a downward departure at an initial risk level determination proceeding, who bears a burden of proof by a preponderance of the evidence (see e.g. People v Gillotti, 23 NY3d 841, 860-861 [2014]; People v Wyatt, 89 AD3d 112, 127-128 [2d Dept 2011]), a sex offender petitioning for a downward modification must prove "the facts [and reasons] supporting the requested modification by clear and convincing evidence" (CL § 168-o[2]; see People v Lashway, 112 AD3d 1235, 1236 [3d Dept 2013]; Wyatt, 89 AD3d at 125). Moreover, the trial court's determination will not be disturbed absent an abuse of discretion (see Lashway, 112 AD3d at 1236 [internal citations omitted]).

At the SORA hearing held on May 10, 2010, clear and convincing evidence was presented that between March 1, 2006 and June 30, 2006, the then thirty-eight (38) year-old defendant repeatedly engaged in sexual intercourse and oral sexual conduct with the fifteen (15) year-old daughter of his paramour. At the time of the offense, the defendant had a prior criminal history, including two (2) felony and one (1) misdemeanor convictions. On April 17, 1985, the defendant received a youthful offender adjudication for Petit Larceny for which he was sentenced to three years probation. On March 7,1988, he pleaded guilty to Criminal Sale of a Controlled Substance in the Fourth Degree and was sentenced to one (1) day in jail split with five (5) years' probation. On October 2,1991, he pleaded guilty to Trespass and was sentenced to a $25 fine or five (5) days in jail. On February 15, 2000, he pleaded guilty to Attempted Assault in the Third Degree and was sentenced to fifteen (15) days in jail. On May 21, 2002, the defendant pleaded guilty to Criminal Possession of a Loaded Firearm in the Third Degree and was sentenced to ninety (90) days in jail split with five years' probation. The defendant subsequently was re-sentenced to two (2) years' imprisonment for a violation of his probation and served that sentence concurrently with the sentence imposed in the instant case. Upon admission to prison, the defendant was screened for alcohol and substance abuse. Based upon his results, he was referred to a sex offender program for chemically dependent inmates, which he completed in September 2009.

Accordingly, the court assessed the defendant a total of ninety-five (95) points pursuant to the Risk Assessment Instrument ["RAI"], comprised of twenty-five (25 points) under Risk Factor 2 for engaging in sexual and deviant sexual intercourse with the victim; twenty (20) points under Risk Factor 4 since it was a continuing course of sexual misconduct; twenty (20) points under Risk Factor 5 since the victim was less than sixteen (16) years-old; fifteen (15) points under Risk Factor 9 for having a prior criminal history including a non-violent felony conviction; and fifteen (15) points under Risk Factor 11 for having a history of alcohol abuse. The court determined the defendant to be a level two sex offender, at moderate risk to re-offend. As a consequence of the defendant's classification, the defendant is required to register as a sex offender for life (see CL § 168-h[2]). Additionally, his name, address and [*3]photograph are maintained on a subdirectory of sex offenders, which is available to the public on the internet (see CL § 168-q[1]).

In support of his petition for a downward modification, the defendant alleges, among other things, that his offense occurred approximately eight (8) years ago; that he "has expressed deep and genuine remorse for his crime;" that since his release from prison in May 2010, he has led a law-abiding life and been compliant with his sex offender registration requirements; that he successfully served his period of post-release supervision, which included completing sex offender and drug treatment programs as well as vocational training; that although he is currently unemployed, he has worked periodically [FN2] ; and that he "does not live an isolated life" and in fact "has a large supportive family with which he is in frequent contact." The defendant also contends that since he is now forty-six (46) years old, studies show that "his danger of sexual recidivism is markedly reduced." He further asserts that the psychologist and director of the facility where he completed sex offender treatment believes that he is "at low risk of re-offense." Finally, he declares that a social worker in his attorney's office has assessed him; concluded that he is at low risk to re-offend; and recommends that this Court therefore reduce the defendant's risk level.

In their affirmation in opposition, the People submit that the defendant's "good behavior" during the "short" time he was on post-release supervision does not support a reduction in his risk level. They dismiss the "personal opinions" of the defendant's family as "not compelling" and point out that "presumably, despite their support," the defendant committed the instant offense. They challenge the instruments utilized by the defendant's social worker to assess his risk [FN3] and dispute that the defendant's age is advanced enough to be a relevant consideration. They contend that "the defendant moved into a household with the child's mother and for close to a year raped [the victim] repeatedly, impregnated her, took her for an abortion and told her to keep it secret." They argue that the RAI, which is "heavily weighted upon the nature of the sex offense," accurately captures the risk which the defendant presents to the public, and that he has failed to offer mitigating circumstances warranting a downward departure.

In its updated recommendation, the Board explains that upon receipt of the defendant's petition for a downward modification, it did not re-score the RAI but examined the changes in the defendant's life since the initial determination which would affect his risk of re-offense. Although the Board credits the defendant for the "pro-social lifestyle" progress he has made since his release from prison, it faults him for not being "more transparent" about the circumstances of his unemployment and the "purported intimacy deficits" in his present relationship. The Board remarks that the defendant [*4]offers "no clear explanation" about "what he has been doing with his day-to-day life since he terminated his employment over a year ago." It comments that although the defendant claims that his status as a sex offender has prevented him from obtaining employment, he admitted during his social work assessment that "he was turned down from prospective employment due to a lack of experience." The Board observes that the defendant was "unemployed for a number of years prior to the commission of the instant offense" and perceives his "inconsistent work history" as "indicative of overall life instability." The Board additionally notes that the dynamic risk assessment tool ["SONAR"] utilized by the defendant's social worker reflects that the defendant has an "Intimacy Deficit" for a current relationship with "troubles." It posits that "intimacy problems were likely a key factor in the sexual abuse of [the defendant's] former paramour's daughter." Accordingly, the Board recommends against a reduction of the defendant's risk level. While encouraging the defendant "to continue leading a pro-social lifestyle," the Board suggests that to prevail on a future petition for a downward modification, the defendant "will need to show he has obtained gainful employment along with providing more elaboration regarding his current relationship, specifically, his wife's awareness of his offense behavior and how she supports him with staying safe and preventing a sexual re-offense."

Under SORA, the Board's responsibility is to develop guidelines and procedures to assess the risk of repeat offense and threat to public safety posed by a sex offender (see Gillotti, 23 NY3d at 852, citing CL § 168-l). Based on the guidelines, the Board must make a recommendation regarding the sex offender's risk level to the court (see id., citing CL § 168-l[5][b][I]). Applying the guidelines, the court must determine the offender's risk level by either accepting the Board's recommendation or rejecting it in favor of a different classification supported by the evidence (see id.). Although the court may exercise discretion and depart from the Board's recommendation, "utilization of the risk assessment instrument will generally result in the proper classification in most cases so that departures will be the exception not the rule'" (People v Guaman, 8 AD3d 545 [2d Dept 2004], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [1997 ed]; People v Harris, 93 AD3d 704, 705 [2d Dept 2012]). Accordingly, under the SORA statutory scheme, in the context of an initial risk level determination, the Board acts in an advisory capacity to the court (see People v Johnson, 11 NY3d 416, 421 [2008], citing Matter of New York State Bd. of Examiners of Sex Offenses v Ransom, 249 AD2d 891 [4th Dept 1998]). The same is true under circumstances where the offender petitions for a downward modification. In sum, while in either event the Court is not bound by the Board's recommendation, it nonetheless is free to adopt it (see e.g. People v Pettigrew, 14 NY3d 406, 409 [2010]; Johnson, 11 NY3d at 421).

Here, the Court concurs with the Board that, despite the defendant's positive behavior since his release, he has not offered sufficient evidence to justify a reduction of his risk level. Particularly significant is the statement contained in his social worker's assessment that the defendant "has been living with his wife for the past four [4] years but is in the process of finalizing a divorce." In light of the Board's opinion that "intimacy problems were likely a key factor" in the defendant's commission of the instant offense, and that spousal support would aid him "in staying safe and preventing a sexual re-offense," the defendant's impending divorce is especially concerning. The defendant's [*5]current protracted unemployment with no secure prospects is also troubling given the circumstances which preceded the instant offense. These factors, despite the "pro-social lifestyle" progress the defendant has made, tend to aggravate rather than mitigate his risk of re-offense. The Court concludes therefore that a downward modification is inappropriate. Accordingly, the instant petition is denied.

This constitutes the decision and order of the Court.

Dated:February 20, 2015

Queens, New York

_________________________

Elisa S. Koenderman, AJSC Footnotes

Footnote 1:The Board submitted an updated recommendation on December 16, 2014. The People presented their affirmation in opposition in court on December 22, 2014. Off-calendar on January 7, 2015, the People filed and served a duplicate affirmation with a copy of the defendant's February 13, 2007 inculpatory handwritten statement. A copy of the defendant's statement previously had been filed with the Court along with the People's written statement notice at the defendant's arraignment on February 14, 2007.

Footnote 2:The defendant also contends that he is applying for a commercial driver's license, and attaches a letter from a former employer stating an intention to rehire the defendant once he obtains the proper credentials.

Footnote 3:One of the risk assessment instruments utilized by the defendant's social worker appears to have been completed incorrectly. Under both Question 3 and 4 of The Static-99R, entitled "Index non-sexual violence - Any Convictions," and "Prior non-sexual violence - Any Convictions," respectively, the defendant received zero (0) points. Although it is unclear from the face of the instrument precisely what each question is asking and how they differ, in fact the defendant does have previous convictions for non-sexual violence. Assuming, therefore, that the defendant should have received at least one (1) extra point for a prior, non-sexually violent conviction, his risk level according to this instrument would have increased from a "3," "low, moderate" risk to a "4," "moderate, high" risk.