People v Kimes
Annotate this CaseDecided on August 5, 2020
Supreme Court, Suffolk County
The People of the State of New York
against
Mark Kimes, Defendant.
1387-2019
HONORABLE TIMOTHY D. SINIJOHN LOTURCO, Esq.
District Attorney of Suffolk CountyAttorney for the Defendant
Melissa Grier, Esq., of counsel434 New York Avenue
Criminal Courts BuildingHuntington, New York 117743
Riverhead, New York 11901
SEX OFFENDER REGISTRY
N.Y.S. Division of Criminal Justice Services
80 South Swan Street
Albany, New York 12210
Chris Ann Kelley, J.
Defendant stands convicted after pleading guilty on the above-captioned indictment to Sexual Abuse in the First Degree (PL §130.65).
On July 30, 2020, this Court conducted a hearing pursuant to Correction Law §168-n to determine the Defendant's appropriate level of community notification as a convicted sex offender.
In making this determination, the Court has considered the following evidence: the Risk Assessment Instrument prepared by the People dated 07/13/20, Grand Jury Testimony of D.G., Pre-Sentence Investigation Report, Defense Sentencing Memorandum, Numerous letters in support of the Defendant, Forensic Psychological Evaluation by Dr. Barry Winkler dated 02/24/20, and the Substance Abuse Evaluation by LCSW Priscilla Lingard dated 02/24/20.
RISK ASSESSMENT FACTOR:
The Court first reviews the Risk Assessment Instrument prepared by the People dated 07/13/20. That document assessed the Defendant ten (10) points under risk factor 1 for the Defendant's use of forcible compulsion, twenty-five (25) points under risk factor 2 for deviate sexual intercourse, twenty (20) points under risk factor 5 for the age of the victim being 11 through 16, twenty (20) points under risk factor 6 for the victim suffering from mental defect, [*2]incapacity, or physical helplessness at the time of the incident, and fifteen (15) points under risk factor 11 for the Defendant having a history of drug or alcohol abuse. The People's instrument results in a total of ninety (90) points which would result in a presumptive level two (moderate risk to re-offend) designation.
The Defendant urges this Court to follow the People's Risk Assessment Instrument with respect to risk factors 2, 5, and 6 but to refuse to assess ten (10) points under risk factor 1 for forcible compulsion, and fifteen (15) points under risk factor 11 for the Defendant having a history of drug or alcohol abuse. The Defendant's assessment results in a total of sixty-five (65) points which would result in a presumptive level one (low risk to re-offend) designation.
At a hearing where the Board, People, or Defendant disagree as to the offender's adjudication, the People bear the burden of proving the facts supporting the determination sought by clear and convincing evidence (see People v. Hernandez, 7 Misc 3d 151, 159 [Bronx Supreme, 2005]). Such a hearing is analogous to a sentencing determination in that the court making the sex offender risk assessment determination has latitude in the type and nature of evidence it may consider and is not bound by the formal rules of evidence (People v. Victor R., 186 Misc 2d 28, 32 [Bronx Supreme, 2000]). In making a determination, the court shall consider and review any victim statement and any other relevant materials and evidence submitted by the sex offender and the People (see Id).
It is further noted that the stated purpose for the development of the Sex Offender Guidelines is that the Board, with the assistance of a group of experts with experience in dealing with sex offenders, "would bring academic knowledge and practical acumen to the difficult task of predicting whether a person convicted of a sex crime is likely to re-offend." See Sex Offender Registration Act, The Risk Assessment Guidelines and Commentary (2006), pg. 1. The responsibility for the final assessment of factor values and the overall determination of a Defendant's sex offender level lies with the Court however, and while recommendations of factor assessments by the Board or the People may be useful, a Court is not constrained by them (People v. Jusino, 11 Misc 3d 470, 488 (NY Supreme, 2005); citing People v. Dorato, 291 AD2d 580 (3rd Dept, 2002).
After careful consideration of all the evidence presented, the Court finds that the People have met their burden of proving the facts underlying their Risk Assessment Instrument by clear and convincing evidence to the extent described below:
Under risk factor 1, "Use of Violence," the Defendant is properly assessed ten (10) points for the Defendant's use of forcible compulsion.
Forcible compulsion as defined in Penal Law §130.00(8) "means to compel by either: a) use of physical force; or b) a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped." Physical force has been established when a Defendant grabs a victim by the neck and pushes the victim's head down against a wall. See People v. McGowan, 469 N.Y.S.2d 701, 702 (1st Dept, 1983); See Also People v. Flynn, 123 Misc 2d 1021, 1023 (NY Supreme, 1984) ("Although no definition of "physical force" is then set forth in the statutes, a commonsense meaning can be readily ascribed, such as power or strength or violence exerted against a body"). Forcible compulsion by physical force may be established when a Defendant uses his greater size and strength to hold the victim down. See People v Flower, 173 AD3d 1449, 145 (3rd Dept, 2019) app. denied, 34 NY3d 931 (2019). The Risk Assessment Guidelines themselves indicate that "discrepancies in age, size, or strength are [*3]relevant factors in determining whether there was such compulsion." Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 8 [1997 ed].
Here, forcible compulsion is established by the Grand Jury Minutes of DG, which recount:
"Q: How were you grabbed?
A: I was grabbed by my wrist, pulled backwards and my teacher had gotten on top of me.
Q: How did he get on top of you, [D]?
A: He got on the bed and he pulled me backwards into him and pushed me, like onto the pillow. And he's about double, maybe triple my size and he was naked.
Q: How do you know he was naked?
A: Because I felt his bare skin on me.
Q: Where did you feel his skin on you?
A: Everywhere?
Q: You said you were pushed into the pillow, what part of your body, if any, was pushed into the pillow?
A: My right side of my face.
Q: How was he on your body?
A: He was behind my body and on top of my body at the same time.
Q: Were you able to get up at all?
A: No.
Q: Then what happened?
A: He then pulled down my pants above my knees and started to penetrate me.
Q: What did he penetrate you with?
A: His penis.
Q; Where did he penetrate you?
A: My anus.
Q: How did that feel?
A: Painful, it was the biggest shock ever. I was traumatized and I felt weak and like my life was flashing before my eyes.
Q: [D], at this time were you still under the effects of alcohol?
A: Yes.
Q: Were you able to push Mark Kimes off of you?
A: No.
Q: Were you able to say anything or yell or anything?
A: No, I was crying.
Q: Did you try to push him off or say anything?
A: Yes, but his force was not, it was too heavy. And he had been whispering in my ear. And I had too much in my head." (Grand Jury Minutes of DG 17:11-19:5) (Emphasis added)
Under risk factor 2, "Sexual Contact with Victim," the Defendant is properly assessed twenty-five (25) points for deviate sexual intercourse. This is established by the Grand Jury Minutes of DG, which recount:
"Q: Then what happened?
A: He then pulled down my pants above my knees and started to penetrate me.
Q: What did he penetrate you with?
A: His penis.
Q; Where did he penetrate you?
A: My anus." (Grand Jury Minutes of DG at 18:7-13) (Emphasis added)
Under risk factor 5, "Age of Victim," the Defendant is properly assessed twenty (20) points for the victim's age being 11 through 16 years old. This is established by the Grand Jury Minutes of DG, which indicate that the crime took place on September 4, 2017 (Grand Jury Minutes of DG at 14:22-24), and that the victim's birthdate was January 13, 2001 (Grand Jury Minutes of DG at 4:18-19). The victim was therefore 16 years old at the time of the incident.
Under risk factor 6, "Other Victim Characteristics," the Defendant is properly assessed twenty (20) points for the victim suffering from mental defect, incapacity, or physical helplessness. The Guidelines incorporate the definitions of these terms from NY Penal Law §130.00(5), (6), and (7). The definition of "physically helpless" has been held to include a sleeping victim. See People v Wells, 138 AD3d 947, 949-950 (2nd Dept, 2016) ("This Court and others have found that definition to include a victim who was asleep at the beginning of the incident").
Here, physical helplessness is established by the Grand Jury Minutes of DG, which recount:
"Q: Do you remember going to sleep that morning?
A: Yes. I turned over on my right and had fallen asleep, tried to fall asleep.
Q: When you say you turned over on your right, is that your right side?
A: On my right side, on my right shoulder.
Q; What is the next thing that you remember?
A: I remember hearing somebody getting onto the bed next to me and grabbing me.
Q: How were you grabbed?
A: I was grabbed by my wrist, pulled backwards and my teacher had gotten on top of me." (Grand Jury Minutes of DG at 17:1-13)
Incapacity is established when a victim has been intoxicated by alcohol or drugs. See People v Rhodehouse, 88 AD3d 1030, 1032 (3rd Dept, 2011).
Here, incapacity by intoxication is established by the Grand Jury Minutes of DG, which recount:
"Q: What did you drink?
A: We drank the beer and Gray Goose and mixed drinks.
Q: Who was making these mixed drinks?
A: My teacher?
Q: That is Mark Kimes?
A: Yes.
Q: What type of mixed drinks were they?
A: Strong mixed drinks with vodka and Sprite. I just remember them being really strong and we had been drinking the beer too." (Grand Jury Minutes of DG at 13:14-24)
[ ]
"Q: At this time how would you describe your feeling after having been drinking?
A: I was very drunk, probably more drunk than I've been. But all three of us were, so I didn't feel out of the ordinary." (Grand Jury Minutes of DG at 16:21-25)
[ ]
"Q: [D], at the this time were you still under the effects of the alcohol?
A: Yes.
Q: Were you able to push Mark Kimes off of you?
A: No.
Q: Were you able to say anything or yell or anything?
A: No, I was crying." (Grand Jury Minutes of DG at 18:18-25)
[ ]
"Q: Could you feel any of the effects of the alcohol?
A: Yes, I was still pretty intoxicated." (Grand Jury Minutes of DG at 21:22-23)
Risk factor 11 is only permitted based upon "Drug or Alcohol Abuse," The Court of Appeals, in People v Palmer, expounded on this particular risk factor when it was not established:
"The People also failed to demonstrate in Long that defendant's 90 minutes of beer drinking constituted alcohol abuse. The People failed to prove the number of drinks Long imbibed, failed to show that his drinking was excessive, failed to demonstrate that defendant was intoxicated, and failed to provide evidence that his drinking was causally linked to the sexual assault. To prove alcohol abuse by clear and convincing evidence, the People would have had to present additional evidence as to defendant's behavior and drinking, which in this case might have been obtained from the adult victim. The Court can only speculate regarding whether defendant abused alcohol on the night in question and whether the drinking led to his deviant behavior." 20 NY3d 373, 379 (2013)
Just as in People v. Long, in this case, the evidence submitted does not establish, by clear and convincing evidence, a history of drug and/or alcohol abuse. While the Grand Jury minutes indicate the Defendant consumed alcohol on the night of the incident, there was no concrete testimony of the amount of alcohol his consumed or the level of intoxication it created.
Furthermore, on this issue the Defendant provided a substance use evaluation provided by Licensed Clinical Social Worker Priscilla Lingard dated 02/24/20. Ms. Lingard conducted an individualized evaluation of the defendant utilizing multiple assessment tools, including: Alcohol Use Disorders Index Test (AUDIT), Addiction Severity Index (ASI), Substance Abuse Subtle Screening Inventory (SASSI), the BECK Depression Inventory, and the Diagnostic and Statistics Manual of Mental Disorders-5 (DSM-5). Ms. Lingard notes that the above diagnostic assessment tools "have been time tested and proven to be both valid and reliable in identifying and determining levels of substance use disorders."
In Ms. Lingard's professional opinion, the results of the AUDIT test were that "Mr. Kimes' score of four on this test was not indicative of habitual alcohol use in a hazardous or abusive manner."
In Ms. Lingard's professional opinion, the results of the SASSI test were that "Mr. Kimes' overall score in this test indicated that there is a low probability that he currently satisfies the DSM-5 diagnostic criteria for a diagnosis of a Substance Use Disorder (SUD)."
In Ms. Lingard's professional opinion, the results of the ASI test were that "his score on the ASI did not currently satisfy the DSM-5 diagnostic criteria for a diagnosis of an Alcohol Use Disorder (AUD)."
Ms. Lingard concludes that "it is the professional opinion of this writer that Mr. Mark L. Kimes does not currently satisfy the DSM-5 diagnostic criteria for a diagnosis of an Alcohol Use [*4]Disorder (AUD). Based upon the above, this Court finds that the People have failed to establish the abuse of drugs and/or alcohol, and this Court finds that no points should be assessed for this risk factor.
As more fully described above, the Court's assessment based upon the risk assessment factors totals seventy-five (75) points which results in a presumptive risk level two (moderate risk to re-offend).
OVERRIDES:
The People do not seek any overrides.
DEPARTURES:
The People do not seek any departures. However, the Defendant seeks a downward departure on the basis that the Risk Assessment Instrument does not adequately take into account the recent assessment by licensed psychologist Dr. Barry Winkler that Defendant poses a low risk to re-offend.
The Court of Appeals, in People v. Gillotti, 23 NY3d 841, 861 (2014) elaborated on the three-step analytical process when evaluating an application for a departure from a presumptive risk level:
"At the first step, the court must decide whether the aggravating or mitigating circumstances alleged by a party seeking a departure are, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines [ ]
At the second step, the court must decide whether the party requesting the departure has adduced sufficient evidence to meet its burden of proof in establishing that the alleged aggravating or mitigating circumstances actually exist in the case at hand [ ]
at the third step, the court must exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant's dangerousness and risk of sexual recidivism [Emphasis added and internal citations omitted]." People v. Gillotti, 23 NY3d 841, 861 (2014)
Addressing the three-step process as regards the Defendant's application for downward departure, the Court must initially decide if the Defendant has established, as a matter of law, the existence of an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines (See People v. Vaillancourt, 112 AD3d 1375 (4th Dept, 2013); Guidelines, pg. 4.
Corrections Law §168-l establishes the composition and role of the Board of Examiners of Sex Offenders, who are empowered to develop and create the Guidelines for use in the above proceeding to assist Judges in determining risk of reoffense. Corrections Law §168-l (5)(e) directs the Board to base the guidelines on, inter alia, "whether psychological or psychiatric profiles indicate a risk of recidivism." Therefore, it is clear that the legislature enacting SORA itself believed that professionals in the field of psychology are qualified to render judgments on the risk of recidivism, and that such judgments may be probative on the issue.
The Guidelines themselves contain a "General Principles" section which recognize that assessment tools are meant to provide an attempt at an individualized view of the risk posed by each offender, but that a generic instrument is imperfect at this task:
"The risk level calculated from aggregating the risk factors and from applying the overrides is "presumptive" because the Board or court may depart from it if special circumstances warrant. [*5]The ability to depart is premised on a recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case." Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [1997 ed].
To that end, this Court is mindful of the words of fellow Judge Conviser who, in multiple opinions reflecting on the enhanced value of individualized assessments by professionals on the question of a Defendant's risk-of-reoffense, has remarked:
"Departure decisions, rather, are typically made by reviewing the RAI, a recommendation from the Board, whatever criminal history information is contained in a court file and argument by the parties. A decision is then made by the Court as to whether an "aggravating or mitigating factor" exists which warrants a departure. In the absence of reliable evidence about the likelihood that an offender will re-offend, however, courts are not equipped to make risk determinations. Risk assessment is not a moral judgment. It is (or should be) an empirical one. It is a determination which seeks to predict how likely it is that a specific future event — a sex offense — will occur. Professionals in the field of sex offender risk assessment would never make risk level determinations with the information most courts have in ruling on departures. Neither, in the Court's view, should the judiciary." People v McFarland, 29 Misc 3d 1206(A), 1206A (NY Supreme, 2010) (Emphasis added).
"Informed sex offender risk assessments, in this court's view, require psychiatric evaluations by trained professionals who have reviewed relevant data and a defendant's scores on a validated actuarial risk assessment instrument. Such evaluations are typically not available in SORA proceedings. A review of the list of factors in the Position Statement is no substitute for a valid risk assessment. Risk level determinations under SORA are increasingly used not only for criminal justice and community notification decisions but to dispositively determine fundamental issues about people's lives, like where a sex offender is permitted to live and whom that offender can live with. Yet, in this state, our courts continue to tolerate a system which bases these increasingly important decisions on outdated and inaccurate scoring systems and court assessments which are made in most cases with clearly inadequate information. This court continues to believe that we can and must do better." People v. Marrero, 37 Misc 3d 429, 443 (NY Supreme, 2012) (Emphasis added).
In the 2014 Court of Appeals noteworthy case of People v. Gilotti, Judge Smith's dissent notes that "SORA's purpose is not to punish. It is to protect the community," and thereafter comments that "An offender's risk level designation under SORA is not an expression of outrage at the heinousness of a crime, or an attempt to make the offender suffer for what he has done. It is an attempt to gauge the likelihood that stringent reporting and notification requirements are needed to protect the public from future sex crimes." People v. Gillotti, 23 NY3d 841, 865 (2014)
Consistent with this view, courts have found a sufficient basis for downward departure in recent assessments by clinical psychologists upon their conclusion that a Defendant's risk of reoffense is low or that a risk assessment instrument improperly scores defendant's risk of reoffense. See People v Kearns, 68 AD3d 1713, 1714 (4th Dept, 2009) ("The professionals who evaluated defendant all concluded that defendant was not a sexual predator, that he did not have abnormal sexual tendencies, and that he was not a threat to himself or others."); See Also People v Champagne, 140 AD3d 719, 720 (2nd Dept, 2016) ("Here, the defendant, through the testimony of his expert [*6]psychiatrist, presented evidence that the application of the automatic override provisions to cases involving noncontact sexual offenses could produce anomalous or unintended results.")
This Court finds that, based upon the statutes, advisory materials, and caselaw described above, the Defendant's proffered basis is a mitigating factor in that it establishes a lower danger to the community and is not adequately taken into account by the Guidelines. There is no risk factor that adequately addresses this potential reduced danger. Therefore, the Defendant's basis for downward departure satisfies the first step of the analysis.
The Court must next decide whether the Defendant has adduced, by a preponderance of the evidence, the existence of this mitigating factor. Defendant attempts to establish this with a Forensic Psychological Evaluation by Licensed Psychologist Dr. Barry Winkler date 02/24/20.
This Court has examined Dr. Winkler's evaluation, and first notes that this Court is familiar with Dr. Winkler and has relied upon Dr. Winkler's psychological assessments in the past. With regards to this case, Dr. Winkler conducted a clinical interview and performed psychological testing on the Defendant on February 17, 2020. The testing included a Personality Assessment Inventory, Static-99R, and Risk for Sexual Violence Protocol. In addition, Dr. Winkler reviewed the Suffolk County Court Indictment in this case, the felony and misdemeanor complaints, the statement of the victim to the police dated 08/08/19, and the Defendant's New York State criminal history printout.
Dr. Winkler's Forensic Psychological Evaluation explained that the STATIC-99R is "an actuarial measure that helps assess risk of future sexual offending by ranking offenders according to their relative risk," and goes on to explain how he analyzed the test results. He rendered his professional conclusion on these results as follows:
"Mr. Kimes score on the STATIC-99R places him in the Low Risk category to reoffend." (Emphasis added)
Dr. Winkler's Forensic Psychological Evaluation explained that the Risk for Sexual Violence Protocol (RSVP) is a "structured professional judgment instrument that identifies 22 factors that have been shown in the research literature to be relevant in both the assessment and management of risk for future sexual offending." Dr. Winkler then explained how he analyzed the test results. He rendered his professional conclusion on these results as follows:
"Based upon the available information, including data obtained from both actuarial and structured professional judgment risk assessment measures, it appears that Mr. Kimes' overall risk for future sexual offending is currently in the Low range." (Emphasis added)
Dr. Winkler's overall analysis concludes:
"On an actuarial measure of risk for future sexual offending administered during the current evaluation, that bases [sic] risk level strictly on the presence or absence of certain items, Mr. Kimes presents with the following two risk factors: the fact that he is not related to the alleged victim, and the fact that his alleged victim is male. He also presents with a protective factor, his age at the time of the alleged offense, which serves to reduce his overall score. On a structured professional judgment instrument also administered during the current evaluation, that allows for a determination of both the presence and relevance of various risk factors for future sexual offending, Mr. Kimes [*7]presents with one possible risk factor: the alleged victim claims that physical force was used, but Mr. Kimes denies engaging in any forced behavior with the alleged victim.
It is important to note that, aside from the risk factors referenced above, Mr. Kimes does not present with any of the other empirically supported factors associated with risk for future sexual offending that were reviewed for the current evaluation. There is no evidence of any diversity or escalation of sexual offending. Mr. Kimes does not express any attitudes that condone or support sexual violence, and he does not present with any psychopathic personality traits or mental illness. There are no indications of any deviant sexual interests or paraphilias. In addition, he does not present with any of the risk factors related to problems with managing risk of sexual reoffending in the community. The absence of these various risk factors is relevant in determining Mr. Kimes' overall risk level for future sexual offending.
Based upon the available information, it appears that Mr. Kimes' overall risk for future sexual offending is currently in the Low range. In my opinion, his risk for future sexual offending can be properly managed in the community with appropriate treatment and supervision." (Emphasis added)
Based upon the above, this Court finds that the Defendant has established, by a preponderance of the evidence, that a recent assessment by licensed psychologist Dr. Barry Winkler concludes that Defendant poses a low risk to re-offend that is not adequately taken into account by the Risk Assessment Instrument. Therefore, the Defendant's basis for downward departure satisfies the second step of the analysis.
Finally, the Court must exercise its discretion by weighing the mitigating factors to determine whether the totality of the circumstances warrants a s to avoid an over-assessment of the Defendant's dangerousness and risk of sexual recidivism. This court has done so, and here notes that the Defendant submitted for this Court's review approximately 51 character letters in support of the Defendant from: his ex-wife, his two children, his brother, 23 fellow soldiers and military personnel, 22 former students, parents of students, and colleagues, as well as from his current employer, and landlord. This Court has reviewed all of these materials, and determines that the totality of the circumstances warrants a downward departure to avoid an over-assessment of the Defendant's dangerousness and risk of sexual recidivism. Therefore, the Defendant's request for a downward departure satisfies the third and final step of the analysis. The Defendant's application is granted and this Court adjudicates the Defendant's risk level to be level one.
Considered cumulatively and under the totality of the circumstances, community safety would best be served by a level one determination. Accordingly, the Defendant is hereby designated a level one sex offender, and designated a Sexually Violent Offender based upon the instant conviction for Sexual Abuse in the First Degree (§130.65), pursuant to Correction Law §168-a(3).
This shall constitute the decision and order of the Court.
Dated: August 5, 2020
__________________________
CHRIS ANN KELLEY, A.J.S.C.
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