People v Lomaglio
Annotate this CaseDecided on May 22, 2017
Supreme Court, Monroe County
The People of the State of New York,
against
Matthew Louis Lomaglio, Defendant.
2012-0972
For the People:
SANDRA DOORLEY, ESQ.
Monroe County District Attorney
Rachel Clark, Esq., of Counsel
47 South Fitzhugh Street, Suite 832
Rochester, New York 14614
For the Defendant:
David Abbatoy, Jr., Esq.
45 Exchange Boulevard, Suite 925
Rochester, New York 14614
Joanne M. Winslow, J.
DECISION AND ORDER
JOANNE M. WINSLOW, J.
Pursuant to Section 168 of the Correction Law, the Court held a hearing on May 8, 2017 and May 22, 2017, to assess Defendant's classification pursuant to the Sex Offender Registration Act (SORA). The Defendant is a sexually violent offender convicted of Course of Sexual Conduct Against a Child in the Second Degree, in violation of Penal Law Section 130.80 (1) (a). The defendant appeared with counsel, David M. Abbatoy, Jr., Esq., Rachel Clark, Esq., appeared for the People.
Defendant has been presumptively classified as a Level 2 (moderate) risk to reoffend, based upon his Risk Assessment Instrument (Exhibit 3) Score. As set forth in the Risk Assessment Instrument (RAI), Defendant was assessed 80 points in the following categories:
10 points-sexual contact with victim
20 points-for duration of offense conduct with victim
30 points-for age of victim
20 points-for relationship with victim
The People join in the recommendation of Level 2 (moderate) classification. The People propose a total assessment of 80 points, or at the very least 75 points, and oppose a discretionary departure:
10 points-for sexual contact with victim*
20 points-for duration of offense conduct with victim
30 points-for age of victim
20 points-for relationship with victim
*The People argue in the alternative that if 10 points are not assessed for contact under clothing, that at a minimum, 5 points should be assessed for contact over clothing.
Defendant opposes a Level 2 risk classification, first claiming that points have been improperly assessed in Category Two. Defendant relies on the fact that the Penal Law, as determined by the Legislature, does not distinguish between contact over clothing or contact under clothing in the definition of sexual contact in Penal Law Section 130.00 (3). The Defendant argues that the Board of Examiners of Sex Offenders (the Board), by distinguishing between contact over closing versus contact under clothing versus contact under clothing, and assessing different points for each, is arguably acting outside of Legislative control and therefore, assessing ten points rather than five would be an illegality. Defendant further contends that the materials utilized and relied upon by the Board of Examiners are incomplete and do not give proper consideration to factors of possible mitigation, which might support a downward departure. Specifically, Defendant objects that the Board did not consider a letter by Carl W. Christensen, LCSW-R, summarizing his evaluation of Defendant, dated December 18, 2013 and amended January 10, 2014. It appears the defense submissions made at the time of sentencing were not included with the presentence materials and therefore not considered by the Board. Additionally, the Defense objects to the entire presentence investigation as outlined in Criminal Procedure Law Section 390.60 (1) not being provided to the Board for consideration, specifically defense counsel's sentencing memorandum and the numerous letters of support submitted on behalf of Defendant. Defendant argues that this is a close case and the factors of mitigation urged by the defense should tip the scales in Defendant's favor and warrant a downward modification to a Level 1 (low) risk to re-offend.
The purpose of the Sex Offender Registration Act is to protect the community by providing adequate notice and supervision of certain released sex offenders. Correction Law Section 168-n (3) requires the People to prove facts to support Defendant's SORA risk-level classification by clear and convincing evidence. Here, Defendant scored a total of 80 points on the Risk Assessment Instrument, a presumptive Risk Level 2. A Court has the discretion to depart from a presumptive risk level where it concludes, "There exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines" (People v. Gillotti, 23 NY3d 841 [2014]). Although the Risk Assessment Instrument allows the Court to utilize a tool for a numerical determination of risk, there is no magic formula for making such determinations. The Court must examine all the facts and circumstances in order to make an accurate assessment of the risk that each individual Defendant poses.
Having considered the recommendation and all of the proof before the Court, as well as the arguments of counsel, the Court finds that 80 points are appropriately assessed against Defendant as follows:
10 points-for sexual contact with victim
20 points-for duration of offense conduct with victim
30 points-for age of victim
20 points-for relationship with victim
The Court of Appeals has held that sworn statements constitute reliable hearsay evidence admissible in SORA proceedings (People v. Sincerbeaux, 27 NY3d 683 [2016], citing People v. Mingo, 12 NY3d 563 [2009]). The sworn testimony at trial of the victim established that Defendant would removed his penis from his clothing, rub it across the face of the victim, and attempt to insert his penis into the mouth of the second grader, moving it all over his face, as well as grabbing the young boy's hand and touching his penis with it. (People's Exhibit 4, pages 20-24). In Defense Exhibit A, Mr. Christensen's letter (marked Exhibit "A") states that Defendant acknowledged taking out his penis and placing it on the victim's face. The Court finds that the proof submitted establishes the assessment of 10 points as proper in the sexual contact with victim category. The Court finds Defendant's arguments regarding the Board acting outside of legislative control unpersuasive. According to the SORA, Risk Assessment Guidelines and Commentary, Factor 2: Sexual contact with victim, is associated with the offender's danger to the community and the guidelines specifically distinguish among offenders whose contact with victims involves touching over clothing or touching under the clothing. The Commentary states that the guidelines were developed with the assistance of a group of experts with diverse experience in dealing with sex offenders. There was no proof presented at the hearing to cause the Court to disregard the factor in manner suggested by Defendant.
The duration of offense conduct with victim was not challenged by the proof at the hearing and the Court finds the assessment of 20 points as proper.
The age of the victim at the time of the offense Defendant has been convicted of, was seven years of age at inception and eight years of age at its conclusion. The guidelines point out that offenders who target young children as their victims are more likely to re-offend, and that such offenders pose a heightened risk to public safety since young children are less able to physically resist and more easily lead into dangerous situations than adults. The Court finds the assessment of 30 points due to the victim being younger than 10 years of age, appropriate.
The relationship with the victim in his case involved the abuse of a professional relationship. Defendant was the victim's second grade gym teacher. An elementary school child should be able to trust a teacher and a teacher should be an appropriate role model for students. Defendant exploited the teacher/student relationship in order to victimize his student who had an expectation and a right to be able to trust his teacher. The Court finds the assessment of 20 points for factor seven to be appropriate.
The Court considered all of the arguments put forth by Defendant in an attempt to establish by a preponderance of the evidence the existence of mitigating circumstances supporting a downward departure from the presumptive risk level.
The Court does not find the evaluation conducted by Carl W. Christensen to be a mitigating circumstance supporting a downward departure. Whether the Board considered it or [*2]not has no influence on the Court, since the Court did consider the evaluation. However, in reviewing the Guidelines, the Court is advised that the Court should examine the offender's most recent credible statements regarding acceptance of responsibility and seek evidence of genuine acceptance of responsibility. The Guidelines are structured to assess points when there is not an acceptance of responsibility and this includes adding additional points if the offender refuses treatment or has been expelled from treatment. The rationale is that an offender's ability to identify and modify the thoughts and behaviors that sexual misconduct originates from is often deemed a prerequisite to stopping the misconduct.
Additionally, the evaluation conducted by Mr. Christensen relies on the fact that the victim did not disclose the full nature of what occurred until five years after the conduct had ended, and he cites the lack of other incidents while Defendant continued teaching as support for his assessment that Defendant's risk of reoffense is low. This analysis ignores the reason why the victim did not report what happened in 2006 or 2007, which he stated was due to the fact that he was afraid. While the lack of further reports is some evidence to support his finding, there are other equally valid explanations for the lack of further reports, which would not support his theory. Notably, the single admission to Mr. Christensen minimized the scope and duration of repeated behavior described by the victim in People's Exhibit 4. Mr. Christensen's evaluation does not address this circumstance. However, the Court will not assess points under factor twelve due to Defendant's completion of the Sex Offender Counseling and Treatment Program in June of 2016.
The Court has reviewed all of the exhibits and arguments made and submitted by Counsel. The Court declines to depart from the presumptive Risk Level 2. The underlying offense involved the Defendant as a figure of authority, the victim's gym teacher, betraying the trust the second grad victim was entitled to, by exposing his penis and rubbing the young victim's face with it as he attempted to put his penis in the victim's mouth. This and other actions which constituted a course of sexual conduct persisted over the course of a period not less than three months in duration. It is the determination of this Court, that the Defendant, Matthew Lomaglio, is properly assessed a Risk Level 2 (moderate) Offender and that he be required to register in accordance with the Correction Law of the State of New York.
ORDERED, that the Defendant's risk level should be entered into the Sex Offender Registry administered by the Division of Criminal Justice Services.
This Decision shall constitute the Order of the Court.
Dated: May 22, 2017
Rochester, New York
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