People v Ramos

[*1] People v Ramos 2019 NY Slip Op 52093(U) Decided on November 14, 2019 Supreme Court, Bronx County Fabrizio, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2019
Supreme Court, Bronx County

The People of the State of New York

against

Carlos Ramos, Defendants



3112/2016
Ralph A. Fabrizio, J.

The debates currently under way in the State Legislature about the potential legalization of marihuana have made their way into arguments at many Sex Offender Registration hearings (SORA), including the one recently held in this matter. This Court is urged to disallow the presumptive 15 point assessments advanced by the Board of Examiners (the Board) under Risk Factor 11 on the Risk Assessment Instrument (RAI), which involves a convicted sex offender's history of "Drug/Alcohol Abuse." The Board has recommended that defendant be assessed a total of 90 presumptive points, which would make him a Level 2 sex offender. The Board also seeks a discretionary upward departure, asking this Court to adjudicate the defendant a Level 3 sex offender.

The defendant challenges two risk factors in the Board's presumptive Level 2 assessment. Alternatively, he seeks a discretionary downward departure, which would result in his being classified as a Level 1 sex offender. Defendant challenges the significance of the evidence of his marihuana use under Risk Factor 11. The argument is that a convicted sex offender's admission of using marihuana on a daily basis is insufficient to merit a court's finding that such admission constitutes clear and convincing evidence of "abuse" of that substance. In this case, defendant made such an admission, for the first time, during his intake interview with the Department of Corrections and Community Supervision (DOCCS). He also acknowledged in that same interview, for the first time, that he was smoking marihuana during the period he committed the registerable sex crime for which he was convicted in this case. In support of his argument, defendant refers to several studies and articles that equate "casual" marihuana use with "casual" consumption of alcohol, and he claims that his "daily" use of marihuana represents nothing more than "casual" or "occasional" use of that substance. According to the defendant, these articles appear on web-sites and in legislative records in connection with the ongoing debate concerning whether New York State will legalize recreational, non-medicinal marihuana use. Defendant argues that these same articles, along with statistical analysis he provides from the same sources, would support this Court's finding in a SORA context that his daily use of marihuana does not place him, and by extension any other convicted sex offender, at higher risk for committing a future sex offense. This Court rejects that argument. It also finds clear and convincing evidence that defendant was not only abusing marihuana, but was likely addicted to it.

The Crime and Guilty Plea

Defendant stands convicted, by plea of guilty, of a single count of the class D violent felony of Criminal Sexual Act in the First Degree (Penal Law § 130.45 (1)). The defendant had been charged in a multi-count indictment with an additional count of the same crime committed on another date, along with other sex-offense related felony and misdemeanor charges. On February 9, 2018, the defendant admitted under oath that during the period between March 1, 2015 and March 31, 2015, when he was twenty-six years old, he sexually assaulted a fourteen-year-old girl by placing his penis inside her mouth. According to the indictment, as well as the defendant's statements to the Department of Probation, he had a nine-month-long sexual relationship with her that began after he "met" this child victim through social media. The plea offer, agreed to by this Court, allowed the defendant to plead guilty on other two misdemeanor dockets to added charges of disorderly conduct. The People represented that in one of those cases, in which he was charged with stealing a woman's cell phone, evidence existed to show that a video which appeared to have been taken secretly from underneath the woman's skirt had been "uploaded" to the woman's "cloud" storage. The sentence bargain offered by the People, and also agreed to by the Court, provided that defendant would be placed on probation for a period of ten years for this matter, with special probation conditions appropriate to sex offenders.

At the time of the plea, defendant had already enrolled himself in Mustard Seed, a sex offender program, and it was represented to the Court that he would voluntarily continue in that program. After defendant's guilty plea was entered on the record, and before the case was adjourned for sentencing, the Court told the defendant he had to be "completely cooperative" when he was interviewed by probation in their preparation of the pre-sentence report. The Court warned the defendant that if he was not cooperative with probation, or he was arrested for any new crime between the plea and sentence date, set for March 23, 2018, he would face an enhanced sentence of two years state prison followed by ten years of post-release supervision. Anticipating that the defendant would be sentenced to probation, the Court also said it would hold the SORA hearing on the sentence date.

The Pre-Sentence Investigation Report

Following the guilty plea, the defendant was interviewed by a probation officer. In the section labeled "Summary of Defendant's Statement," the probation officer wrote the following: "The defendant admitted his guilt. He stated that he had met the complainant on Facebook and was just 'messing around.'" In the section labeled "Substance Abuse," the probation interviewer wrote, the "[d]efendant reported no use of controlled substances and/or alcohol." He did report a mental health history, in which he indicated he had been "diagnosed with Bi-Polar Schizophrenia, Depression and Anxiety." The defendant was being by treated a psychiatrist and a therapist at the time. He stated that he had been "prescribed the medication Abilify, Aripiprazole, and admits he does not take them as prescribed."

Post-Plea Arrest

On March 9, 2019, the defendant was arrested in New York County and charged with Assault in the Second Degree. The victim was a New York City Police Officer. According to the [*2]RAI, in this matter, a police officer began to follow the defendant after the officer observed the defendant following a woman as she ascended the stairs inside a subway station. The defendant held onto a folder, and positioned it near to and parallel with the woman's knees. As the officer watched and followed the defendant, he saw the woman gasp, turn around, and state that the defendant touched her leg. The officer saw the defendant holding a black cell phone under the folder. The defendant pushed the officer, injuring him. The defendant hurled the cell phone onto the subway tracks in order to destroy evidence on the phone. The defendant was arrested and charged, and subsequently indicted for Assault in the Second Degree (Penal Law § 120.05(3)), a class D violent felony, and Tampering With Physical Evidence (Penal Law § 215.40(2)), a class E felony.

Sentencing

On March 23, 2018, the defendant appeared for his sentencing. This Court was informed of the New York County arrest and indictment. The Court found that the defendant had violated the no-arrest provision of the conditions imposed at the time of the plea. He was remanded for sentencing. On March 28, 2018, this Court sentenced the defendant to a two year determinate term of state prison, followed by ten years post-release supervision.

The Evidence at the SORA Hearing

On October 25, 2019, defendant appeared for his SORA hearing. In a pre-hearing submission, the defendant challenged the Board's assessment of 15 points, under Risk Factor 11. He also challenged the Board's assessment of 10 points under Risk Factor 13, which relates to defendant's post-offense behavior "conduct while confined/supervised." In that same submission, the defendant provided evidence for the hearing to support his application for a downward departure. In their own pre-hearing submission, the People indicated that they agreed with the Board's assessment of 90 points, as well as the Board's request for an upward departure, and submitted their own documentary evidence for the Court to consider at the hearing.

During the hearing, the People relied on the minutes of the plea proceeding as well as the Board's case summary to support their position that there was clear and convincing evidence to support assessing points for many of the RAI factors. The Court found the People proved by clear and convincing evidence, under Risk Factor 2, that defendant engaged in "sexual intercourse, deviate sexual intercourse, or aggravated sexual abuse" with his child victim, and assessed 25 points. The People also proved, by clear and convincing evidence, that defendant engaged in a "continuing course of sexual misconduct with the victim," under Risk Factor 4, and assessed an additional 20 points. The Court further found that the People proved, by clear and convincing evidence, that the victim was between the ages of 11 and 16 at the time of the crime, and assessed an additional 20 points under Risk Factor 5. Defendant did not dispute the Court's decision and assessment of points for these three risk factors, or dispute the use of the RAI case summary or plea minutes proffered as evidence.

Defendant's History of Drug or Alcohol Abuse

The Court reserved decision at the time of the hearing about whether to assess the 15 points under Risk Factor 11. After hearing arguments from both sides related to the evidence [*3]submitted, the Court now finds the People have proven, by clear and convincing evidence, that the defendant has a history of abusing marihuana, as well as alcohol.

At the outset, defendant's claim that his self-reported history of daily marihuana use is insufficient clear and convincing evidence of substance abuse in a SORA context collapses under the weight of the reported cases finding just the opposite to be true. See e.g. People v. Secor, 171 AD3d 1314, 1315 (3rd Dept 2019); People v. Aldarondo, 136 AD3d 770, 771 (2nd Dept 2016); People v. Collins, 127 AD3d 568 (1st Dept 2015); People v. Filkins, 107 AD3d 1069, 1069-70 (3rd Dept 2013); People v. Adams, 101 AD3d 1792 (4th Dept 2012); People v. Legall, 63 AD3d 1305, 1306 (3rd Dept. 2009); People v. Guitard, 57 AD3d 751(2nd Dept 2008); People v. Martinez, 2018 N.Y.Misc LEXIS 1873 (App. Term. 1st Dept. May 22, 2018). Put simply, daily marihuana use is considered substance abuse in terms of assessing a convicted sex offender's future risk of committing another sex offense.

In fact, evidence of a person's "daily marihuana use" is a factor considered by New York courts in making relevant legal determinations involving parties in non-SORA situations. For example, documented proof of a parent's "daily" marihuana use is routinely cited as a factor in court decisions to remove a child from a home as well as, in some cases, a factor in a court's termination of parental rights. See Matter of Maggie Y.Y., 172 AD3d 1562 (3rd Dept 2019); Matter of Debra SS, 163 AD3d 1199, 1202 (3rd Dept 2018); Matter of Jah'Meir G., 112 AD3d 1014 (3rd Dept 2013). In terms of the legislation requiring courts to consider a defendant's application to "divert" that individual to a drug treatment track for certain offenses, it has been held that a judge abused his discretion by denying the application for treatment to a drug dealer who had a history of "daily marihuana" use. See People v. DeYoung, 95 AD3d 71 (2nd Dept 2012).

The recognition that a person who uses marihuana on a daily basis can be characterized as "drug dependent," or a "chronic user" has nothing to do with any law that makes recreational marihuana use legal. According to defendant, statistics cited during the current legislative debate state that "one in ten" New Yorkers smoke marihuana. Missing from that cited statistic is the frequency of such use by any particular New Yorkers.[FN1] There is also no statistic cited by the defendant that de-links substance abuse by anyone, even where the substance is legal, like alcohol, to a risk assessment of a convicted sex offender who regularly uses drugs or alcohol. Defendant completely ignores the role that drugs like marihuana and alcohol play in assessing a chronic user's risk of re-offending when that individual is a convicted sex offender. "The commentary to the SORA guidelines describes risk factor 11 as follows: 'Alcohol and drug abuse [*4]are highly associated with sex offending. The literature indicates that use of these substances does not cause deviate behavior; rather it serves as a disinhibitor and therefore is a precursor to offending.'" People v. Palmer, 20 NY3d 373, 378 (2013) (citation omitted). The "literature" provided by defendant used in connection with the debate about legalizing marihuana in New York does not include any analysis of non-casual use of marihuana by a convicted sex offender and the risk of that sex offender committing another sex crime in the future.[FN2]

The clear and convincing evidence in this case that defendant has a history of marihuana abuse is not limited to defendant's admission to using marihuana every day. Following that admission, defendant was screened within DOCCS using the Substance Abuse Treatment Admission and Comprehensive Evaluation (ACE). The People have provided the documentation from that evaluation. Defendant wrote that during the six-month period immediately prior to committing the sex offense for which he pled guilty, he "smoked all the time and on the weekends, I drank." He said, "At that time, I was consumed in drugs, the weed and liquor. I was so stressed out that all I did was smoke weed all day long." He had a job delivering pizza, and made those deliveries by driving his car. He elaborated on the extent of his marihuana abuse as follows:

I would smoke a blunt prior to going to work. I would smoke throughout the day. At work, I would smoke on break, and after I left work, I smoked. Since I had no home, when I left work I continued smoking. If I had classes I would go to class high. When I came out of class, I continued to smoke, worked on my homework, and smoked some more weed. The weekends, I would drink and smoke all day after work; after I did all my homework; I would pass all my classes and get my credits.

(People's Exhibit H).

Of course, based on the DOCCS assessment, defendant was immediately placed in an Alcohol and Substance Abuse Treatment Program (ASAT), along with a Sex Offender Counselling and Treatment Program (SOCTP). In a self-assessment document, on December 27, 2018, while in these prison-based programs, defendant stated: "Using drugs and alcohol and being involved in homelessness led to my sexual behavior. Being heavily intoxicated and an alter (sic) mind (sic) with a corrupt past and abuse[FN3] is what mainly set my path towards the disastrous sexual behavior." (People's Exhibit E).

Defendant participated in both programs while in prison, and apparently continues to do so as he awaits release from prison. He submitted positive progress reports compiled by the programs as part of his own evidence, submitted in support of his application to be adjudicated a [*5]Level 1 Sex offender. (Defendant's Exhibits G, H, I and J). However, in his self-reflective risk assessment, prepared in anticipation of his release from prison, defendant identified "weed" and "liquor" as two separate "triggers" that he would need to avoid in order to keep from re-offending. They were listed first and second on his self-composed list. Other "triggers" he listed were his "ex-girl," along with violent "shooting video games." (Defendant's Exhibit G). In letter addressed to this Court, dated September 20, 2019, which is designated as defendant's Exhibit B, defendant writes, "I've made so many bad choices in my life . . . [while in prison] I have also acquired knowledge that I can use to make good choices and refrain from re-offending."

Despite all this documentation, some of which defendant himself submitted, he continues to argue that the People have failed to prove by clear and convincing evidence that he has a history of substance abuse. He cites the absence of any criminal arrest record which includes a charge related to, or involving, possession of marihuana. He mostly described using marihuana and alcohol in areas not open to public view. Although defendant admitted that he drove for a living while using and abusing marihuana and alcohol, the absence of any arrest record for such conduct does nothing to detract from the proof that defendant abused marihuana and alcohol to such an extent that he was mandated to a prison-based substance abuse program.

Defendant also refers to two documents, which he says provide contradictory information and therefore negates all the other evidence of defendant's serious and protracted history of substance abuse. The first is the pre-sentence investigation report prepared on March 20, 2018. Based on the defendant's statement to the probation interviewer that he did not use "controlled substances and/or alcohol," probation did not recommend that defendant attend any type of controlled substance or alcohol counseling. The second is based on documentation submitted as defendant's Exhibit K, which are reports prepared by Mustard Seed. In these reports, prepared in April and July, 2016, the social workers at Mustard Seed only noted two areas of "identified concerns: Deviant Fantasies and Thinking Errors." These "concerns" are listed along other potential areas of concern on a check-off list used by the program. The Mustard Seed social workers did not check the box labeled "substance abuse" as an area of concern. Thus, argues defendant, this contradictory evidence he provided from the Department of Probation and Mustard Seed must lead this Court to conclude that there is not clear and convincing evidence to justify awarding points under Risk Factor 11.

The evidence of defendant's pervasive and dangerous marihuana abuse and addiction has been demonstrated by evidence that is crystal clear and decidedly convincing to this Court. What is also clear is that defendant was purposely deceitful to the social workers at Mustard Seed, as well as to the probation interviewer. In terms of Mustard Seed, the Court also questions the overall thoroughness of the intake evaluation. The box next to "Psychiatric Evaluation Needed" on the risk checklist is also not checked off. As noted, in the probation report, defendant stated "he was diagnosed with Bipolar Schizophrenia, Depression and Anxiety" and that he regularly saw mental health professionals. The social worker at Mustard Seed also did not check the box next to "Stopped Taking Meds." Once again, however, defendant told the probation interviewer that he was prescribed Abilify, but was not taking that drug as prescribed. The failure of the Mustard Seed program to ascertain the serious extent of defendant's psychiatric problems, their failure to apparently subject the defendant to any type of drug or alcohol screening or random testing, and the defendant's current position that this all represents evidence that would compel [*6]this Court to exclude the 15 points assessed under Factor 11 in this matter, is quite troubling. For all these reasons, this Court finds that the defendant has a history of drug and alcohol abuse that is supported by ample clear and convincing evidence, and there is no credible evidence to the contrary.

Risk Factor 13 - Conduct While Confined/Supervised

Defendant also challenges the Board's request to assess an additional 10 points based on their finding that his conduct while confined and/or supervised was "unsatisfactory." In the RAI, the Board calls this factor "supervision awaiting sentence," and asks that the points be awarded based, in part, on the Court's warning to the defendant on the date of the plea that if he were arrested for anything else prior to the date set for sentencing, he would face a state prison sentence. The People agree with this interpretation of the word "supervision" for this risk factor. This Court does not. Although the commentary to this guideline states that this factor relates to the "offender's conduct while in custody or under supervision as a predictor of future behavior," the guideline itself states that the 10 points should be awarded when "the defendant's adjustment to confinement or supervision has been unsatisfactory." Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 16(2006). The People cite no relevant case to support the interpretation that they and the Board advocate. This Court does not find that defendant's criminal conduct and the circumstances of his arrest after he pled guilty justify assessing points under Risk Factor 13 for that reason.[FN4]

However, the People have provided clear and convincing evidence that defendant's conduct while confined in state prison has been unsatisfactory. The commentary states that "an offender who has numerous citations for disciplinary violations or who accrues disciplinary dispositions of a serious nature . . . poses a heightened risk of recidivism: his misconduct bodes ill for his return to the streets." The People have submitted three certificates from DOCCS that reflect separate disciplinary infractions documented between April 2019 and the date of the hearing. The Board noted that it was aware of one "Tier II incident for Fighting and Violent Conduct." That is documented in People's Exhibit K, which notes that defendant acknowledged receipt of a "Tier 2 ticket" for "Violent Conduct/Fighting on 5/23/19," and that defendant was placed on probation for 30 days. People's Exhibit J is a document from defendant's SOCTP records, dated April 19, 2019. Defendant's treatment staff noted that "behavioral concerns" had been documented and "he had been seen at TRPC and placed on 30 days probation." That probation period would have ended just prior to the May 23, 2019 incident. Defendant signed that document as well. Finally, the People have provided documentation that on August 16, 2019, defendant was found to be in "possession of pornography." This resulted in his being placed on probation for 90 days; he was still on probation at the time of the SORA hearing. According to the DOCCS document, this represents an "I.G. No Ticket Issue." However, because defendant is [*7]a convicted sex offender who participated in the SOCTP program, this was considered serious enough to merit the lengthy period of probation. He was also informed that he would be required to "adhere to SOCTP guidelines. And future behaviors may lead to future disciplinary consequences." The defendant signed this document. The Court finds that these documents constitute reliable hearsay and provide clear and convincing evidence that defendant's recent conduct while imprisoned, and coming close in time to his anticipated release date, was unsatisfactory, and merits awarding 10 points under Risk Factor 13.

Given all this, the Court calculates the defendant's presumptive risk of re-offending according to Board guidelines at 90 points. This places him at Level 2, a person deemed to be a "moderate" risk for SORA monitoring purposes.

Defendant's Application for A Downward Departure

Defendant argues that this Court should exercise its discretion and order a downward departure, which would constitute a finding that defendant is at "low risk" of committing a future sex crime. In determining whether a downward departure should be made, the defendant bears the burden of establishing, by a preponderance of the evidence, the existence of "'an appropriate mitigating factor.'" People v. Lacewell, 103 AD3d 784, 786 (2nd Dept 2013) (citing People v. Harris, 93 AD3d 704, 705 - 06 (2nd Dept. 2012)). "A departure from a sex offender's presumptive risk level is generally warranted only where 'there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not taken into account by the guidelines.'" People v. Watson, 112 AD3d 501, 503 (1st Dept 2013) (citing Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4(2006)).

Here, defendant claims that he has been "productively and successfully completing rehabilitation programs during his incarceration." While the defendant cites to many positive reports from his SOCTP, he has been placed on probation twice while in the Level II portion of this program. The Court does not find that his overall program participation evidences a serious mitigation factor; if anything, his misconduct while incarcerated, during his participation in the program, merited the awarding of 10 presumptive risk factor points. Defendant's completion of a vocational building maintenance course, his participation in a custodial maintenance course, and his participation in a job search program are not factors of a "kind and degree" to warrant a downward departure. The defendant's reconnecting with family members while incarcerated and his hope to live with his family upon his release in what would likely be an appropriate living situation are factors that are already accounted for in the RAI, and the defendant was assessed zero points for any factors related to his post release environment. Weighing these, and all other factors cited by defendant as supporting a downward departure, this Court declines to exercise its discretion and adjudicate defendant a low risk, Level 1 sex offender.

The Board's Application for an Upward Departure to Level 3

Where an application is made for an upward departure from a presumptive risk assessment level, the prosecution bears the burden of demonstrating "by clear and convincing evidence" significant aggravating factors not taken otherwise taken into account in an adequate way by the SORA guidelines. People v. Gillotti, 23 NY3d 841, 861-62 (2014). The Board requests such a departure based on its argument that defendant "was surreptitiously recording [*8]women under their skirts both before and after the instant offense for his sexual gratification, the conduct of which is not captured in the scoring."[FN5] They also request the departure based on the fact that he "committed a violent felony" while awaiting sentencing in this matter, and while engaging in the act of making such a recording. The People agree that the Court should view these as aggravating factors which would warrant an upward departure. They add that this Court should consider what they characterize as the "deceitful and deceptive nature of" defendant's conduct in making such photographs and then destroying the evidence while he was in the Mustard Seed program. The People argue that "the totality of the defendant's conduct [and] sexual offense history is not adequately reflected in the RAI."

Defendant asks this Court to deny this relief for a variety of reasons. Although defendant argued, and this Court agreed, that the defendant's arrest after his plea but prior to his sentencing did not merit consideration for the Court's awarding of points under Risk Factor 13, conduct while supervised, he now argues that his post-plea arrest and conviction conduct are adequately taken into account in the RAI. This Court disagrees. Risk Factor 9 assess points based upon a defendant's criminal history prior to the commission of the sex offense. Risk Factor 13 concerns allegations of misconduct mainly while a defendant is incarcerated or under the supervision of the Department of Probation or Parole. The conduct alleged by the Board and the People relating to the defendant's arrest, prosecution, and conviction after his guilty plea in this matter and prior to his sentence is simply not accounted for in the guidelines. A court may consider incidents of serious and/or violent criminal behavior committed by a convicted sex offender after the arrest on the pending sex crimes case in connection with an application for an upward departure from a presumptive SORA designation. See People v. Scott, 113 AD3d 491, 492 (1st Dept. 2014).

Defendant's second argument is that the People have failed to provide clear and convincing evidence of the conduct alleged. The People have provided the defendant's certificate of conviction from New York County Supreme Court, stating that defendant was convicted of the violent felony of Assault in the Second Degree and sentenced to a two year state prison sentence. That conviction is for the crime defendant committed on March 19, 2018. That is admissible evidence, and then some, of a serious violent felony committed by the defendant that is not accounted for in the RAI's presumptive point formula.

The allegations that defendant was using a cell phone to record or photograph underneath a woman's skirt on March 19, 2018 are contained in the case summary, and are based on the probation report prepared in connection with the defendant's sentencing in the Manhattan assault case. As noted, in that matter, a Manhattan Grand Jury also indicted the defendant for the felony charge of Tampering With Physical Evidence. According to the pre-sentence report in that matter, the officer who arrested the defendant, and who the defendant later assaulted, observed the defendant following a woman up the stairs of a subway station. He was holding a folder in his hand, and the folder was parallel to the woman's knees. The folder shielded from public view a [*9]cell phone that defendant held in that same area. The officer saw and heard the woman scream that the defendant touched her leg, saw the cell phone, and ran to get the defendant. In the course of his panic upon being discovered, he threw the phone onto the subway tracks. As the officer tried to apprehend the defendant, he injured that police officer. The case summary, based upon the probation report prepared in that matter, constitutes "reliable hearsay" evidence of the defendant's commission of a sexually motivated crime in the New York City subways. See People v. Mingo, 12 NY3d 563, 572-73 (2009).

In addition, in the SOCTP report prepared by the defendant himself on December 27, 2018, submitted as People's Exhibit E, the defendant wrote: "My sexual behavior included the current victim, the woman of the unlawful surveillance. I'm ashamed to say but now that my mind is clear and my body disintoxicated (sic) I feel terribly horribly for my actions." In a document called "addition to clarification," written by defendant and presented as People's Exhibit F, defendant states, "a lady past(sic) by me in a very skimpy mini skirt. Her butt was showing . . . I didn't even think. I took out my phone to take (sic) a picture on the stairs and I saw the cops and turned around the other way and I ran. They approached me and I ran. Soon they caught me and I dropped my phone." In these narratives, drafted in defendant's own hand, he provided more than sufficient corroboration for the events described by the Board in its case summary.

All of this provides clear and convincing evidence of risk-related criminal conduct that is not accounted for anywhere in the RAI. This Court finds that, given the severity of the conduct involving secretly photographing a woman while holding a cell phone camera under her skirt, defendant's violent response in causing injury to a police officer who caught him in the act of a sexually-related offense that he himself calls "Unlawful Surveillance," the fact that he did so while in the Mustard Seed program which he enrolled in to address his illicit sexual activity, and that he committed this assault in the hope of getting away and not being arrested when he was aware that he could face a state prison sentence if arrested for any crime following his plea of guilty, the RAI underestimates this defendant's risk level. Therefore, the Court grants the Board's application and, in an exercise of its discretion, adjudicates the defendant a Level 3 sex offender.This Constitutes the Decision and Order of the Court.

Dated: November 14, 2019

_______________________________

Hon. Ralph Fabrizio Footnotes

Footnote 1: Colorado, the first state to legalize recreational use of marihuana, commissioned a statistical study to determine the effects of that legislation on crime and prosecutions in that state, as well as risks to an individual's health and the impact on drug treatment. The study acknowledges that 15% of Colorado residents of all ages use marihuana. The health statistics mainly involve individuals who reported using marihuana once in a 30 day period. People who reported using marihuana for 22 days out of the same 30 day period were characterized as "heavy users" and marihuana is called their "drug of abuse." "Impact of Marihuana Legalization in Colorado. A Report Pursuant to Senate Bill 13-283, October 2018" at pages 63-99, available at https://www.colorado.gov/dcj and then to link "Marihuana and Crime in Colorado."

Footnote 2: Massachusetts has already decriminalized recreational use marihuana. That state's sex offender guidelines continue to cite marihuana abuse as a risk factor to be considered in determining the level of supervision for a convicted sex offender. See Woe v. Sex Offender Registry Board, 2019 Mass. App. Unpub. LEXIS 239 (Appeals Court of Massachusetts, April 2, 2019) (citing 803 Code Mass. Regs § 1.33(9)(a), Factor 9).

Footnote 3: Defendant reported that he had his first sexual encounter, initiated by a relative, when he was nine years old.

Footnote 4: Defendant was being supervised by Mustard Seed during the pendency of the case. However, that was not a court-mandated program in this instance. The defendant enrolled in that program on his own. This Court can envision a situation where a defendant is mandated to attend a sex offender treatment program by a court while a case is pending, and potentially assessing points under this risk factor for such unsatisfactory conduct while under program supervision.

Footnote 5: The Court does not find that there is clear and convincing evidence that defendant surreptitiously took photographs from underneath a woman's skirt based on an arrest that occurred prior to his plea on this matter. As noted, this Court agreed to accept a plea to Disorderly Conduct in that matter based on the People's statement on the record that they had no evidence that defendant took such a photo at that time.