People v McEvoy

[*1] People v McEvoy 2017 NY Slip Op 51134(U) Decided on September 13, 2017 Supreme Court, Kings County Quinones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2017
Supreme Court, Kings County

People of the State of New York, Plaintiff,

against

Steven McEvoy, Defendant.



7442/2016



For the Defendant:

Michael Jaccarino, Esq.

Aidala, Bertuna and Kamins

For the People:

Alana Tierney, Esq.

Kings County DA's Office
Joanne D. Quinones, J.

On July 13, 2017, Defendant was convicted, upon his guilty plea, of the crime of Sexual Misconduct, in violation of Penal Law (PL) section 130.20(1), a registerable offense under the Sex Offender Registration Act (SORA) (see Correction Law § 168-a [2][a][i]). On September 6, 2017, he was sentenced to a conditional discharge with a full and final order of protection requiring him to have no contact with the complainant M.H. Based on his conviction for Sexual Misconduct, Defendant was certified as a sex offender.

On the date of his sentence, a SORA determination hearing was held, pursuant to Correction Law section 168-n, to determine Defendant's sex offender classification level based on Guidelines developed by the Board of Examiners of Sex Offenders (Board). The Board's Guidelines are designed to assess the risk of a repeat offense by the sex offender and his threat to public safety (see Correction Law § 168-l [5]). Those Guidelines set forth a schedule of risk factors, known as a Risk Assessment Instrument (RAI), for which specified number of points are assessed. As mandated by the Correction Law, the prosecution has the burden of proving, by clear and convincing evidence, the facts that support each particular risk factor for which it seeks an assessment (see Correction Law § 168-n [3]). "The sentencing court has wide discretion with regard to the conduct of the hearing and the type and nature of the testimony and evidence to be considered [as the] [f]ormal rules of evidence are inapplicable and reliable hearsay evidence may be" considered (People v. Salaam, 174 Misc 2d 726, 731 [Sup Ct, NY County 1997]).

In making its determination regarding Defendant's sex offender classification level, the [*2]court considered the Risk Assessment Instrument prepared by the People, the grand jury minutes, the indictment, Defendant's arrest record, the probation report, Defendant's written submission including the exhibits attached therein, and the oral arguments made at the hearing.

I now make the following findings of fact and conclusions of law:

I find that the People have established facts by clear and convincing evidence which support the assessment of the following number of points for the following factors:

25 points for Risk Factor 2 - Sexual Contact with Victim - in that the People established, through the grand jury testimony of the complainant, that Defendant engaged in sexual intercourse and oral sexual conduct with the complainant. Additionally, in his statement to the probation interviewer, Defendant admitted he engaged in sexual relations with the complainant.20 points for Risk Factor 4 - Duration of Offense Conduct with Victim - in that the People established, through the grand jury testimony of the complainant, that Defendant engaged in a continuing course of sexual misconduct, namely sexual intercourse and oral sex, with the complainant for several weeks from late July 2016 through mid-August 2016. The complainant's grand jury testimony further establishes that Defendant gave her drugs, specifically crack and heroin, during the times they had sex and that on one occasion in August she was briefly hospitalized after overdosing on heroin given to her by Defendant. After the complainant was released from the hospital, Defendant again had sexual intercourse and "did drugs" with the complainant. The complainant's grand jury testimony also establishes that on one occasion Defendant squeezed his hands around the complainant's neck and "threatened to cut [her] face from the right side of [her] ear to the other, the left" "if [she] talk[ed] to any other male."20 points for Risk Factor 5 - Age of Victim - in that the People established, through the grand jury testimony of the complainant, that at the time of the offense the complainant was 16 years old, having been born in the year 2000.30 points for Risk Factor 9 - Number and Nature of Prior Crimes - in that the People established, through Defendant's arrest record, that Defendant was previously convicted of a violent felony. Defendant's arrest record establishes that on May 21, 2004, here in Kings County, Defendant was convicted of Burglary in the First Degree, a class B violent felony, in violation of PL section 140.30(1).10 points for Risk Factor 10 - Recency of Prior Felony or Sex Crime - in that the People established, through Defendant's arrest record, that Defendant was convicted of a felony within three years of commission of the instant offense. Defendant's arrest record establishes that on October 1, 2015, less than a year before he was arrested on the instant matter, Defendant was convicted of a felony here in Kings County, namely Burglary in the Third Degree, a class D non-violent felony, in violation of PL section 140.20(1). It bears noting that while Defendant was paroled pending sentence on said felony, he committed the instant offense. Additionally, his arrest record shows that on August 9, 2016, during the period of the instant offense, he failed to appear on the burglary case and a bench warrant was issued.15 points for Risk Factor 11 - Drug or Alcohol Abuse - in that the People established, through the grand jury minutes and the probation report, that Defendant has a history of drug abuse. Additionally, defense counsel readily admitted in both his written submission and oral argument that Defendant has a long history of substance abuse.15 points for Risk Factor 14 - Supervision - in that the People established that the Defendant, having been sentenced to a conditional discharge, will not be subject to supervision on this case.

The People have thus established facts by clear and convincing evidence which support the assessment of a total of 135 points which places Defendant within the purview of a Level 3 sex offender.

Defendant seeks a downward departure from Level 3 to Level 1. In People v Wyatt, 89 AD3d 112, 128 (2nd Dept 2011), the Appellate Division articulated a two-prong showing to be made by a defendant seeking a downward departure: i) the identification of a mitigating factor which tends to establish a lower likelihood of re-offense or danger to the community which is of a kind not adequately taken into account by the Board's Guidelines and ii) the presentation of facts that support the mitigating factor by a preponderance of the evidence. Defendant submits that the court should grant a downward departure because the points assessed under Risk Factors 2 and 4 result in an over-assessment of his risk to public safety. He further argues that the points assessed under Risk Factor 14 are inappropriate.

With respect to Risk Factor 2, Sexual Contact with Victim, Defendant correctly points out that in cases where the lack of consent is due only to an inability to consent by virtue of age, courts have routinely held that the scoring of 25 points under this factor can result in an over-assessment of the offender's risk to public safety. And in fact, the Board's Guidelines themselves recognize this as a mitigating factor and expressly state that "a court may choose to depart downward in an appropriate case and in those instances where (i) the victim's lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points in this category results in an over-assessment of the offender's risk to public safety" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [Guidelines] [2006 ed] at 9).

"An over-assessment of risk to public safety may be shown with evidence of a combination of facts such as a minimal age difference between the defendant and the complainant and the absence of forcible compulsion" (Wyatt, 89 AD3d at 130). In support of his application, Defendant relies heavily on the recent Appellate Division case of People v Walker, 146 AD3d 824 [2nd Dept 2017] where the court held that under the circumstances presented therein, including that the victim's lack of consent was solely by reason of her inability to consent due to age, a downward departure was appropriate. In Walker, the offense was the only sex-related crime in defendant's history, defendant's conduct while incarcerated was acceptable, and defendant completed at least one recommended treatment program. Based on all of those circumstances, the court found that assessing the defendant 25 points under Risk Factor 2 resulted in an over-assessment of his risk to public safety.

In this case, it is undisputed that the only reason for the complainant's lack of consent was her inability to consent due to her age. Additionally, there is no evidence of forcible compulsion. However, even where there is no allegation of forcible compulsion, courts have denied downward departures where the age difference between the defendant and the complainant is not minimal (see, e.g., Wyatt, 89 AD3d 112 [13 year difference between defendant and victim]; People v Fryer, 101 AD3d 835 [2nd Dept 2012] [13 year disparity between 26 year old defendant and 13 year old victim]). Here, the age difference was far from minimal. At the time of the offense Defendant was 32 years old, twice the age of the 16 year old complainant.

Defendant's submission fails to set forth facts which establish by a preponderance of the [*3]evidence that scoring 25 points in this category would result in an over-assessment of his risk to the public (compare Walker, 146 AD3d at 826 [considering all the circumstances presented, the assessment of 25 points under Risk Factor 2 results in an over-assessment of defendant's risk to public safety] with Wyatt, 89 AD3d at 129 [downward departure denied as defendant failed to adduce facts supporting that scoring 25 points under Risk Factor 2 resulted in over-assessment of his risk to public safety]). Defendant submits two copies of the complainant's Facebook page indicating she was born in 1990 and that she is in a "relationship with Steve McEvoy" (see Exhibit A to Defendant's written submission). The Facebook page also reflects messages exchanged between Defendant and the complainant on July 30, without reference to a year.[FN1] Additionally, Defendant submits three letters from family members which he purports indicate that "the complainant informed several of [his] family members that she was twenty-six (26) years old" (see Affirmation of Defense Counsel, p 5, ¶ 15). Significantly, none of the authors of the letters expressly state that the complainant told the individual author that she was over the age of 16. Defendant's father writes that the complainant told Defendant "and family members on many occasions that she was 26 years old" but he comes short of writing that she stated that to him directly (see Exhibit C to Defendant's written submission). Defendant's mother writes "most of our family met [M.H.] and believed that she was much older than 16. According to what we know, she indicated on her Facebook page to be born [in] 1990" (id.). And finally, Defendant's grandmother writes, "I saw Steven and [M.] on many occasions at my home and also thought her to be much older" (id.). These exhibits are insufficient to satisfy Defendant's burden of showing, by a preponderance of the evidence, that the assessment of 25 points under Risk Factor 2 is an over-assessment of his risk to public safety.

Moreover, while Defendant is steadfast in his position that he was unaware of the complainant's age, in his statements to the probation interviewer he indicates that his relationship with the complainant "was exposed after the complainant posted them as a couple on Facebook" and that he was later contacted by complainant's mother who informed him of the complainant's age. He then contends that "when he told the complainant she had to go because he was unaware she was 16, she refused" but she later left and they then resumed a platonic relationship and were abusing heroin and crack-cocaine together. The Facebook posts annexed to Defendant's submission shows that at least as of July 30, 2016, the complainant held herself out to be in a relationship with Defendant. It is unclear when Defendant was contacted by the complainant's mother and when they allegedly resumed a "platonic relationship," but the complainant's grand jury testimony reflects that the two were engaging in sexual relations up until August 14, 2016, the date the complainant was picked up by the police at a hotel in Brooklyn.

As to Risk Factor 4, Duration of Offense Conduct with Victim, Defendant again argues that the points assessed under this category result in an over-assessment of his risk to public safety. He submits that despite the age difference between the two, he and the complainant were in a relationship. He cites to the complainant's Facebook page and the letters written by his family which indicate that the two held themselves out to be in a relationship with one another. He emphasizes that, as stated in the Guidelines, "[t]his category is designed to reflect the fact that some offenders, particularly those who prey on young children, manifest their compulsive [*4]behavior by engaging in a course of sexual contact with the same victim" and that "[t]he offender who sexually abuses his girlfriend's young daughter over a period of several weeks falls into this 20-point category" (see Guidelines at 10). Defendant submits that the conduct here cannot be equated with "the calculated and prolonged actions of a true sexual predator" (see Affirmation of Defense Counsel, p 3-4, ¶ 11). That notwithstanding, the significant age disparity between Defendant and the complainant coupled with the facts that Defendant supplied the under-aged victim with crack and heroin regularly, once resulting in her hospitalization for an overdose, and that even after he was made aware of the complainant's age he maintained a relationship with her and continued to consume drugs with her add to the seriousness of this matter.

Turning now to Risk Factor 14, Supervision, Defendant contends that the points assessed under this factor are inappropriate because while Defendant is being sentenced to a conditional discharge in the instant matter, he is currently serving an indeterminate sentence of 3 to 6 years in prison on an unrelated conviction for Burglary in the Third Degree and once released, will be supervised and monitored by the Department of Parole. This supervision category "is premised on the theory that a sex offender should be supervised by a probation or parole officer who oversees a sex offender caseload or who otherwise specializes in the management of such offenders" (see Guidelines at 17). Further, "[t]he Board Guidelines make it clear the RAI scoring is predicated upon consideration of an offender's 'current offense,' which clearly relates to the SORA qualifying offense and not necessarily other offenses that a defendant may have committed" (People v Reid, 141 AD3d 156, 159 [1st Dept 2016]). While Defendant may be released to Parole to complete his indeterminate sentence on the burglary conviction, there is no indication that his supervision will be by a parole officer who oversees a sex offender caseload. Hence, "on this record it is not clear that the circumstance of the [burglary] conviction and the consequent [Parole] supervision would support a downward departure" (id. at 158). Because Defendant here was released without supervision on this case, the SORA qualifying offense, he is properly assessed 15 points under Risk Factor 14 (see People v Lewis, 37 AD3d 689, 690 [2nd Dept 2007] ["Once the County Court determined that the defendant would be released without supervision, its inquiry was ended, and the assessment of 15 points based upon the absence of postrelease supervision was appropriate"]).

In determining Defendant's application, the court has also considered Defendant's failure to fully accept responsibility for his conduct (see People v Ashley, 19 AD3d 882, 883 [3rd Dept 2005] [defendant's statement that he was misled as to the ages of the victims reflects his failure to fully accept responsibility for his conduct]). While the People did not submit that Defendant should be assessed points for Risk Factor 12, Acceptance of Responsibility, Defendant's statements to the probation interviewer, specifically that he thought the complainant was 26 years old, that he was trying to offer her and her friends help in the form of NA meetings and dinner, and that after he was informed by the complainant's mother that the complainant was 16, he told her she had to go but she refused after which he resumed only a "platonic relationship" with her, are an attempt to minimize his guilt and reflect a failure to fully accept responsibility for his behavior.

The circumstances before this court are readily distinguishable from those in the cases relied upon by Defendant where a downward departure was granted. Given the circumstances here, including the significant disparity in age between Defendant and the complainant, that Defendant continued to consume drugs with the under-aged complainant even after learning her [*5]true age, that Defendant has a significant criminal history, and that at the time he committed the instant offense, Defendant was out pending sentence on a recent felony, the court finds that a downward departure is not warranted (see People v Belile, 108 AD3d 890 [3rd Dept 2013]; People v Greene, 93 AD3d 1230 [4th Dept 2012]).

Accordingly, based on the clear and convincing evidence before the court establishing an aggregate total assessment of 135 points on the Risk Assessment Instrument, Defendant is designated a Level 3 sex offender.

This constitutes the decision and order of the court.

Dated: September 13, 2017

Brooklyn, New York

Joanne D. Quiñones, A.J.S.C. Footnotes

Footnote 1:At the SORA hearing, defense counsel indicated the posts on the Facebook page were from July 30, 2016.