Opinion
18–09005
02-09-2018
The PEOPLE of the State of New York, Plaintiff, v. Orlando COVINGTON, Defendant.
Anthony A. Scarpino, Jr., District Attorney, White Plains (Joseph Servino Jr. of counsel), for plaintiff. Kevin Kennedy, Yorktown Heights, for defendant.
Anthony A. Scarpino, Jr., District Attorney, White Plains (Joseph Servino Jr. of counsel), for plaintiff.
Kevin Kennedy, Yorktown Heights, for defendant.
Susan Cacace, J. On February 6, 2018, upon the appearance of the defendant with his assigned attorney, Kevin Kennedy, Esq., and the appearance of Assistant District Attorney Joseph Servino, this Court conducted a risk level determination proceeding under the dictates of Article 6–C of the Correction Law, otherwise known as the Sex Offender Registration Act (hereinafter, SORA). Pursuant to the requirements of Correction Law § 168–k and § 168–a(2)(d)(iii), this proceeding was conducted in a manner consistent with the guidelines set forth in subdivision five of Correction Law § 168–l, which require the hearing court to determine the duration of the sex offender's registration obligations under Correction Law § 168–h, the degree of risk of re-offense presented by the sex offender insofar as same is relevant to the nature of the sex offender's notification obligations under Correction Law § 168–l(6), and the designation of the sex offender as either a "sexually violent offender", a "predicate sex offender" or a "sexual predator" within the meaning of Correction Law § 168–a(7). Upon completion of the instant SORA risk level determination proceeding, this Court makes the following findings of fact and conclusions of law:
Findings of Fact
In connection with a criminal prosecution in the Circuit Court of Henrico County, Virginia (Tidey, J.), the defendant was convicted of one count of the felony offense of Murder in the Second Degree in violation of Virginia Code Annotated (V.C.A.) § 18.2–32 following a trial without a jury under Case No. CR01–4643 on June 19, 2002 (hereinafter, the underlying conviction). The defendant was subsequently sentenced upon the underlying conviction in the Circuit Court of Henrico County, Virginia (Tidey, J.) on September 13, 2002, to terms which included the imposition of a term of imprisonment of 40 years. In connection with the underlying conviction, the trial court concluded that the adduced evidence had established that the defendant had committed the crime of Murder in the Second Degree, having been found guilty, beyond a reasonable doubt, of the willful, deliberate and premeditated killing of a person under the age of fourteen years while he was twenty-one years of age or older.
During the course of the instant risk assessment determination proceeding, the People submitted material for the Court's consideration including the Risk Assessment Instrument (RAI) prepared by the Board of Examiners of Sex Offenders (hereinafter, the Board) which was admitted into evidence as People's Exhibit No.1a, a copy of the Case Summary prepared by the Board which was admitted into evidence as People's Exhibit # 1b, a copy of Virginia Code § 18.2–31 which was admitted into evidence as People's Exhibit # 2, a copy of the Presentence Investigation Report (PSR) prepared on September 6, 2002 by the Virginia Department of Corrections which was admitted into evidence as People's Exhibit # 3, a copy of the Decision of the Court of Appeals of Virginia affirming the defendant's conviction of the underlying crime of conviction which was admitted into evidence as People's Exhibit # 4, a copy of the Henrico County Police Division Incident Crime Report which was admitted into evidence as People's Exhibit # 5, a copy of the defendant's Sentencing Order issued by the Circuit Court of Henrico County, Virginia (Tidey, J.) on September 13, 2002 which was admitted into evidence as People's Exhibit # 6, a copy of the trial decision rendered by the Circuit Court of Henrico County, Virginia (Tidey, J.) on June 1, 2002 which was admitted into evidence as People's Exhibit # 7, and a copy of the defendant's Commonwealth of Virginia Department of State Police Sex offender and Crimes Against Minors Registration Form which was admitted into evidence as People's Exhibit # 8.
In reliance upon their submission of the above-referenced materials and the oral argument they presented, the People submit that the defendant should be designated a presumptive Risk Level One sex offender based upon the allocation of fifty-five (55) points to his Total Risk Factor Score. As proposed by the People, the recommended Total Risk Factor Score of fifty-five (55) points would be derived from the allocation of thirty (30) points pursuant to RAI Risk Factor # 5 "Age of victim", ten (10) points pursuant to RAI Risk Factor # 12 "Acceptance of responsibility", and fifteen (15) points pursuant to RAI Risk Factor # 14 "Supervision". In addition, the People have moved this Court to designate the defendant a Level Three sex offender based upon the application of a SORA override based upon the defendant's responsibility for intentionally causing the death of a 3 year old child through his commission of the underlying crime of conviction.
During the course of this proceeding, the defense also submitted material for the Court's consideration, including a letter drafted by L. Hedgepeth, the defendant's Cognitive Counselor at the Coffeewood Correctional Center, which was admitted into evidence as Defense Exhibit A. In reliance upon the foregoing and the oral argument presented by counsel, the defense opposes the recommendation of the People in support of a presumptive Risk Level One designation derived from the allocation of fifty-five (55) points to his Total Risk Factor Score, arguing that the Court should allocate only a total of thirty (30) points to the defendant's Total Risk Factor Score, which would result in an unchanged presumptive Risk Level One designation. Specifically, the defense opposes the allocation of ten (10) points to the defendant's Total Risk Factor Score under RAI Risk Factor # 12, as well as the allocation of fifteen (15) points thereto pursuant to RAI Risk Factor # 14, while conceding the propriety of the allocation of thirty (30) points under RAI Risk Factor # 5. Furthermore, although the defense does not oppose the People's application of the SORA override, the defense does raise argument that the defendant should not be adjudicated as a sex offender under SORA in the State of New York pursuant to Correction Law § 168–a(2)(d)(ii) in the first instance, as his murder conviction in the State of Virginia would not have required his registration as a sex offender in the State of New York if he had committed that registerable offense in our State in reliance upon People v. Diaz , 150 AD3d 60, 61, 50 N.Y.S.3d 388. In the alternative, the defendant submits application for a downward departure from his presumptive override-based Risk Level Three designation to a Risk level One designation.
The People oppose the defendant's challenge to his adjudication as a sex offender under SORA in the State of New York, arguing that the defendant is required to register as a sex offender in our State pursuant to Correction Law § 168–a(2)(d)(ii) based upon the fact that he is required to register as a sex offender in the jurisdiction in which the underlying conviction occurred, that being the State of Virginia, and further based upon argument that the instant proceeding is framed by facts which are distinct from those upon which the Diaz Court relied when holding that the defendant in that case was not required to register as a sex offender under SORA.
Upon consideration of the foregoing arguments, the Court will first address the defendant's challenge to his designation as a sex offender under Article 6–C of the Correction Law, and thereafter, if necessary, the Court will address the calculation of the defendant's SORA Total Risk Factor Score, the People's application for an override, and the defendant's application of a downward departure from the defendant's presumptive SORA Risk Level designation.
Conclusions of Law
Pursuant to the explicit terms of Correction Law § 168–a(2)(d)(ii), the defendant is statutorily required to register as a sex offender in the State of New York as a consequence of his conviction in the Commonwealth of Virginia of the crime of Murder in the Second Degree which was based upon the defendant's intentional killing of a male child who was three (3) years-of-age (hereinafter, the underlying crime), as the defendant's conviction of that underlying crime obligated him to register in the Commonwealth of Virginia under its Sex Offender and Crimes Against Minors Registry Act ( Va. Code Ann § 9.1–900 et seq ). However, despite the clear meaning of Correction Law § 168–a(2)(d)(ii) to establish that the defendant's underlying crime is defined as a "sex offense" under SORA, and the uncontested applicability of the statute to the defendant as a consequence of his conviction of the underlying crime without regard to the absence of any element(s) of a sexual nature of that qualifying conviction (see People v. Knox , 12 N.Y.3d 60, 65, 875 N.Y.S.2d 828, 903 N.E.2d 1149 ), the defendant argues that the holding of the Appellate Division, First Department in People v. Diaz , 150 A.D.3d at 61, 50 N.Y.S.3d 388) mandates that he be excused from his sex offender registration requirements under SORA in the State of New York. Specifically, the defendant argues that he should not be required to comply with the registration requirements of SORA because his underlying crime was not defined by any elements of a sexual nature, which he advances as the basis upon which the Court in People v. Diaz relied to reach its determination that the application of the SORA registration requirements to a defendant who had murdered his minor 15 year old half-sister, but had not sexually offended against her in any known manner, violated the defendant's substantive due process rights under the Federal and New York State Constitutions because such registration was not rationally related to the governmental purpose of protecting the public from sex offenders provided by SORA (see People v. Diaz , 150 A.D.3d at 63, 50 N.Y.S.3d 388).
Upon consideration of the defendant's argument that the holding in People v. Diaz serves to excuse the defendant from his registration obligations in the State of New York under SORA, this Court notes that the Diaz Court pointedly related that its holding was based upon the "specific facts" presented in that case (see People v. Diaz , 150 A.D.3d at 61, 50 N.Y.S.3d 388). In this regard, the Diaz Court specifically grounded its due process analysis—that the application of the SORA registration requirements to that defendant was not rationally related to the governmental purpose of protecting the public from sex offenders provided by SORA—upon the evidence within that record which indicated that "the defendant's murder of his half-sister did not have a sexual component" (see People v. Diaz , 150 A.D.3d at 63, 50 N.Y.S.3d 388). However, the record here, unlike the record in the Diaz case, indicates that the evidence adduced during the defendant's trial included forensic medical evidence revealing that, in addition to the multitude of contusions to the 3 year old victim's skull, chin, left shoulder, sternum, chest, clavicle and both legs, the victim had also suffered significantly traumatic injuries to his scrotum and penis which were attributed to non-accidental blunt force trauma inflicted within a period of 24 hours or less from the time of the victim's death while he was in the exclusive care and custody of the defendant.
Despite the severity of the injuries about the victim's entire body, the victim's cause of death was specifically attributed to blunt force trauma to his head which caused severe subarachnoid and subdural hemorrhaging.
Of course, it is evident that in neither the Diaz case, nor the case at bar, was the crime of conviction of Murder in the Second Degree under V.C.A. § 18.2–32 based upon an element of sexually offending behavior against the decedent victim, but it is also recognized by this Court that if the 3 year old victim had not succumbed to the obviously horrific and torturous beating(s) inflicted by the defendant, the evidence within that record would have supported sex offense charges against the defendant for the significantly traumatic injuries he inflicted upon the victim's scrotum and penis, albeit of a lesser grade than the homicide for which the defendant was ultimately convicted. Stated succinctly, despite the defendant's conviction of the greater crime of Murder in the Second Degree for intentionally killing a 3 year old child, the Court need not turn a blind eye to the additional evidence within the record of the defendant's sexual abuse of the victim insofar as such conduct relates to the due process analysis advanced by the defendant. Accordingly, consistent with the due process analysis employed in People v. Diaz , this Court has examined the specific facts of the case at bar, most notably the evidence within the record of the defendant's sexual abuse of the victim, and finds that unlike in Diaz , requiring the defendant in the case at bar to register as a sex offender in the State of New York as statutorily required under Correction Law § 168–a(2)(d)(ii) is rationally related to, and does serve the legitimate governmental purpose of protecting the public from sex offenders (see People v. Diaz , 150 A.D.3d at 63, 50 N.Y.S.3d 388).
Furthermore, insofar as the holding of the Appellate Division, First Department in People v. Diaz can be understood to conflict with the holding of the Appellate Division, Second Department in People v. Taylor, 42 A.D.3d 13, 835 N.Y.S.2d 241, this Court would follow the legally binding precedent established by the Taylor Court to require that a defendant whose underlying crime of conviction is contained within the list of qualifying crimes established by Correction Law § 168–a(2)(a)–(e) must register as a sex offender in the State of New York under SORA, irrespective of whether or not there was a sexual component to the defendant's underlying crime of conviction, and that requiring the defendant to do so does not violate either the Fourteenth Amendment to the United States Constitution nor article 1, § 6 of the New York State Constitution (see People v. Taylor , 42 A.D.3d 13, 14, 835 N.Y.S.2d 241 [irrespective of whether "the defendant is a sex offender, or his offense is a sex offense, is of no legal significance where, as here, the Legislature has rationally chosen to categorize him or his offense as such] ).
Based upon the foregoing, this Court finds that the defendant is statutorily required to register as a sex offender in the State of New York pursuant to the explicit terms of Correction Law § 168–a(2)(d)(ii), irrespective of the absence of a sexual component, element or motivation pertaining to the qualifying crime of conviction, as a consequence of his conviction in the Commonwealth of Virginia of the crime of Murder in the Second Degree which obligated him to register in the Commonwealth of Virginia under its Sex Offender and Crimes Against Minors Registry Act ( Va. Code Ann § 9.1–900 et seq ) (see People v. Knox , 12 N.Y.3d at 65, 875 N.Y.S.2d 828, 903 N.E.2d 1149, cert. denied 558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 ; see also People v. Edney , 143 A.D.3d 793, 38 N.Y.S.3d 817, lv. denied 28 N.Y.3d 912, 2017 WL 79540 ; People v. Cintron , 46 A.D.3d 353, 848 N.Y.S.2d 616, lv. denied 10 N.Y.3d 804, 857 N.Y.S.2d 33, 886 N.E.2d 797 ; People v. Jackson , 46 A.D.3d 324, 847 N.Y.S.2d 532, lv. denied 10 N.Y.3d 929, 862 N.Y.S.2d 332, 892 N.E.2d 398 ; People v. Taylor , 42 A.D.3d 13, 835 N.Y.S.2d 241, lv. denied 9 N.Y.3d 887, 842 N.Y.S.2d 766, 874 N.E.2d 731 ).
Turning next to the determination of the duration of the defendant's registration obligations upon application of the guidelines set forth in Correction Law § 168–l(5), and the determination of the defendant's level of notification upon consideration of the factors set forth in Correction Law § 168–l(6), the Court has considered the recommendations of the People, as evinced through the RAI prepared in connection with the instant proceeding, and the Risk Assessment Guidelines and Commentary (hereinafter, the Guidelines) prepared by the Board of Examiners of Sex Offenders (hereinafter, the Board) in connection with the calculation of the defendant's Total Risk Factor Score and presumptive risk assessment level. In connection with the calculation of a sex offender's Total Risk Factor Score, the Court is mindful that "[p]oints should not be assessed for a factor ... unless there is clear and convincing evidence of the existence of that factor" (see "Sex Offender Registration Act": Risk Assessment Guidelines and Commentary, at 5 [2006]; see also People v. Salaam , 174 Misc. 2d 726, 666 N.Y.S.2d 881 ). As the defense does not oppose or otherwise contest the propriety of allocating thirty (30) points to the defendant's Total Risk Factor Score under RAI Risk Factor # 5, the Court need only address the merits of the People's application seeking the allocation of ten (10) points to the defendant's Total Risk Factor Score under RAI Risk Factor # 12, and the allocation of fifteen (15) points under RAI Risk Factor # 14, and will independently and individually address both the merits of the People's override application, and then, if necessary, the merits of the defendant's downward departure application from the defendant's presumptive Risk Level designation.
In support of their application seeking the allocation of ten (10) points to the defendant's Total Risk Factor Score under RAI Risk Factor # 12, the People argue that the defendant has failed to express a genuine acceptance of responsibility for intentionally causing the death of the 3 year old victim through their reliance upon Exhibit # 3, which reflects the defendant's stated disbelief that his conduct with respect to the victim resulted in his conviction of the underlying crime for intentionally killing him. Specifically, the People reference the defendant's statement that he was not guilty of anything, which he supports by making further statements assailing inconsistencies in the testimony of several trial witnesses regarding seemingly innocuous details, and by challenging the sufficiency of the adduced evidence of his guilt. The defense opposes the People's application in relation to RAI Risk Factor # 12 without challenging the evidence adduced by the People, but rather relying exclusively upon the argument that the defendant should not be required to register under SORA because there was no sexual component to the underlying crime of conviction.
With respect to the consideration of the level of a defendant's acceptance of responsibility pursuant to RAI Risk Factor # 12, the Guidelines provide that the SORA court "should examine the offender's most recent credible statements and should seek evidence of genuine acceptance of responsibility" (see "Sex Offender Registration Act": Risk Assessment Guidelines and Commentary, at 18 [2006]. Therefore, with respect to the defendant's statements referenced by the People in Exhibit # 3, this Court finds that the defendant's consistent failure throughout his PSR interview to acknowledge a scintilla of responsibility for causing the death of the victim, and his deflection of blame for his conviction of the underlying crime upon the failure of the trial judge to properly consider the evidence adduced during his trial, constitutes a refusal to accept responsibility for his criminal conduct (see People v. Mitchell , 300 A.D.2d 377, 751 N.Y.S.2d 530, lv. denied 99 N.Y.2d 510, 760 N.Y.S.2d 101, 790 N.E.2d 275 ; see also People v. Chilson , 286 A.D.2d 828, 731 N.Y.S.2d 88 ; People v. Marinconz , 178 Misc. 2d 30, 35, 679 N.Y.S.2d 244 ). Accordingly, as this Court concludes that the People have satisfied their burden to prove by clear and convincing evidence that the defendant has failed to express a genuine acceptance of responsibility pursuant to RAI Risk Factor # 12 (see People v. Smith , 78 A.D.3d 917, 911 N.Y.S.2d 451 ; People v. Peana , 68 A.D.3d 737, 888 N.Y.S.2d 915 ; People v. White , 39 A.D.3d 979, 833 N.Y.S.2d 726 ; see People v. Dubuque , 35 A.D.3d 1011, 824 N.Y.S.2d 823 ), the People's application seeking allocation of a total of ten (10) points under RAI Risk Factor # 12 toward the defendant's Total Risk Factor Score is granted.
Turning next to consider RAI Risk Factor # 14, the People argue that the Court should allocate fifteen (10) points toward the defendant's Total Risk Factor Score in reliance upon Exhibits # 6 and # 8, which reflect the absence of any continuing community-based supervision for the defendant since his release from imprisonment upon the completion of his sentence for the underlying crime of conviction in the Commonwealth of Virginia. The defense opposes the People's application in relation to RAI Risk Factor # 14 without challenging the evidence adduced by the People, but rather relying exclusively upon the argument that the defendant should not be required to register under SORA because there was no sexual component to the underlying crime of conviction.
With respect to an assessment of the level of supervision of a defendant while at liberty in the community, the Guidelines provide that "[a]n offender who is released without ... intensive supervision is assessed points in this category" (see "Sex Offender Registration Act": Risk Assessment Guidelines and Commentary, at 16 [2006]. In this regard, as the adduced evidence indicates that the defendant was released from imprisonment without any form of community-based supervision, the Court finds that the People have satisfied their burden to prove by clear and convincing evidence that the defendant has been released without supervision within the meaning of RAI Risk Factor # 14 pursuant to the Guidelines. Based upon the foregoing, the People's application seeking the imposition of fifteen (15) points under RAI Risk Factor # 14 toward the defendant's Total Risk Factor Score is granted.
Upon consideration of the foregoing, the Court finds that after allocating the applicable point total to each of the statutory recidivism risk factors set forth in the RAI, a total of fifty-five (55) points is appropriately allocated to the defendant's Total Risk Factor Score, which provides for a presumptive finding that the defendant should be classified as a Risk Level One sex offender. As the defendant's Total Risk Factor Score results in a presumptive finding that he is a Risk Level One sex offender, the Court will next turn to consider the People's application for an override based departure from his presumptive Risk Level One designation to a Risk Level Three designation.
With respect to the People's application seeking to establish that the defendant should properly be designated a Risk Level Three sex offender based upon application of an override under the Guidelines, the Court recognizes that the Guidelines provide that "the infliction of serious physical injury or the causing of death" will "automatically result in a presumptive risk assessment of level 3" ("Sex Offender Registration Act": Risk Assessment Guidelines and Commentary, at 17 [2006] ). In support of this application, the People rely upon People's Exhibits # 1(b), # 3, # 4, # 5, # 6, # 7 and # 8 to establish the defendant's conviction of Murder in the Second Degree under V.C.A. § 18.2–32 for the intentional killing of a 3 year old child provides clear and convincing evidence of the defendant's responsibility for causing the death of another person. In this regard, it is understood by this Court that it lacks jurisdiction to determine whether or not to apply the override sought by the People, as the application of an override upon sufficient clear and convincing evidence is automatic (see People v. Gordon , 133 A.D.3d 835, 836, 20 N.Y.S.3d 165 ). Accordingly, upon the Court's consideration of the proffered evidence establishing clear and convincing proof of the defendant's responsibility for causing the death of another person, and noting the absence of any argument in opposition thereto by the defense, the Court finds that the People have established that the defendant should be designated a presumptive Risk Level Three sex offender based upon the application of an Override pursuant to the Guidelines.
Turning now to consider the defendant's downward departure application, the Court notes that although the presumptive risk level provides a rebuttable presumption, the calculation reached by the courts upon utilization of the RAI will generally "result in the proper classification in most cases so that departures will be the exception not the rule" ("Sex Offender Registration Act": Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v. Williams , 19 A.D.3d 388, 795 N.Y.S.2d 895, lv. denied 5 N.Y.3d 713, 806 N.Y.S.2d 164, 840 N.E.2d 133 ; see also People v. Guaman , 8 A.D.3d 545, 778 N.Y.S.2d 704 ). Upon consideration of an application seeking a departure from a presumptive risk assessment level, the courts are specifically authorized to depart upwardly or downwardly from same when "there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines" (Board of Sex Offense Examiners, "Sex Offender Registration Act": Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v. White , 25 A.D.3d 677, 811 N.Y.S.2d 699, lv. denied 6 N.Y.3d 715, 823 N.Y.S.2d 356, 856 N.E.2d 920 ; People v. Henry , 91 A.D.3d 927, 938 N.Y.S.2d 323 ).
In this regard, the courts have the discretion to grant the application of a sex offender seeking a downward departure from his or her presumptive risk level when he or she makes a twofold showing, first identifying "as a matter of law, an appropriate mitigating 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" ( People v. Wyatt , 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see People v. Benjamin , 105 A.D.3d 926, 963 N.Y.S.2d 336 ; People v. Washington , 105 A.D.3d 724, 961 N.Y.S.2d 790 ; People v. Madison , 98 A.D.3d 573, 574, 949 N.Y.S.2d 701 ), and second, proving by a preponderance of the evidence that the facts alleged to constitute a mitigating factor are sufficient to warrant a departure from the presumptive risk level (see People v. Wyatt , 89 A.D.3d at 127–128, 931 N.Y.S.2d 85 ; see also People v. October , 101 A.D.3d 975, 976, 956 N.Y.S.2d 148 ; People v. Watson , 95 A.D.3d 978, 979, 944 N.Y.S.2d 584 ).
In support of the defendant's application for a downward departure from his presumptive Risk Level Three designation to a Risk Level One designation, defense counsel argues that since the defendant was not charged with any disciplinary infractions while serving his sentence of imprisonment in the Commonwealth of Virginia, has no predatory predilections, had completed the Ready to Work Program, the Cognitive Thinking Program, and the Sex Offender Admissions Program while imprisoned, and because there were no sexual elements in his commission of the underlying crime of conviction, he presents a low risk to re-offend and a minimal risk to the community. The People oppose the defendant's downward departure application by first arguing that a downward departure is not available to a defendant who is the subject of an override under the Guidelines, and by further arguing that none of the factors cited by the defense reflect either his low risk of re-offense or his minimal risk to the community. Upon consideration of the foregoing, the Court first rejects the People's argument that the Court is without authority to consider and/or grant a defendant's downward departure application after reaching a determination that the defendant is a presumptive Risk level Three sex offender upon the application of an override under the Guidelines, as there is no support for such a proposition within the Guidelines (see Board of Sex Offense Examiners, "Sex Offender Registration Act": Risk Assessment Guidelines and Commentary, at 17 [2006] ). Rather, the clear and explicit language of the Guidelines provides that "the guidelines contain four overrides that automatically result in a presumptive risk assessment of level three" (Id. at 17), and further provide that "[t]he risk level calculated from ... applying the overrides is 'presumptive' because the Board or court may depart from it if special circumstances warrant" (Id. at 4). Consequently, this Court concludes, contrary to the People's argument otherwise, that the defendant's "presumptive" risk assessment as a Risk Level Three sex offender based upon this Court's application of an override, as set forth supra , does not preclude this Court from further considering the defendant's downward departure application.
Upon consideration of the merits of the defendant's downward departure application, although the Court is pleased that the defendant had been participating in several programs which appear to have been geared toward enabling him to avoid recidivist behavior following his release from imprisonment, the Court also recognizes that recidivist risk management requires great effort by a defendant to develop insight into their past criminal behavior, that is to reach an understanding of the underlying basis for that behavior. Unfortunately, based upon the defendant's persistent denial and/or minimization of his responsibility for severely beating the 3 year old victim about his entire body, including his head, face, chest, clavicle, shoulder and legs by blunt force means, and further causing severe trauma to the 3 year old victim's penis and scrotum by the suspected horrific squeezing of same, all of which collectively caused this deceased victim to suffer unimaginable torment before he finally expired, this Court finds that the defendant has yet to develop the necessary insight into the underlying basis for his abhorrent criminal conduct, as well as a sincere appreciation for the horrors suffered by the child victim of his barbarism, as a means of enabling him to develop appropriate and effective countervailing techniques to avoid recidivist criminal behavior in the future. In sum, this Court believes that only through the development of such insight into the underlying bases for his criminal behavior against an utterly defenseless child, through committed child abuse-specific treatment, may the defendant be capable of employing the mechanisms learned through such treatment to overcome the triggers which served to promote his criminal behavior against a child in the past. Given the present state of the record, the Court does not find that the defense has proffered any showing which supports a conclusion that the defendant has established any mitigating factors which would justify a downward departure from his presumptive Risk Level Three designation. Accordingly, upon due consideration of the defense claim that the defendant presents a lower likelihood to re-offend than that suggested by his presumptive risk level, this Court concludes that the defendant has failed to meet his burden to establish by a preponderance of the evidence that any of the mitigating factors he cited establish a lower likelihood of re-offense or danger to the community sufficient to warrant a downward departure from his presumptive risk level. As a result of the defendant's failure to meet his burden of proof with regard to the requisite twofold showing established in People v. Wyatt, 89 A.D.3d at 121, 931 N.Y.S.2d 85, this Court lacks discretion to downwardly depart from the presumptive risk level ( People v. Henry , 106 A.D.3d 796, 964 N.Y.S.2d 612, lv. denied 21 N.Y.3d 863, 2013 WL 4516341 ; People v. Washington , 105 A.D.3d 724, 961 N.Y.S.2d 790 ; People v. Shepard , 101 A.D.3d 978, 979, 956 N.Y.S.2d 152 ; People v. Martin , 90 A.D.3d 728, 934 N.Y.S.2d 321 ). Based upon the foregoing, the defendant's request for a downward departure from his presumptive Risk Level Three designation is denied.
Furthermore, with respect to the Court's additional obligation to determine whether the defendant shall be designated a sexually violent offender, predicate sex offender or sexual predator within the meaning of Correction Law § 168–a(7), the Court finds that the defendant's conviction of Murder in the Second Degree under V.C.A. § 18.2–32 for the intentional killing of a 3 year old child does not satisfy the criteria required for the defendant's further designation under Correction Law § 168–a(7)(a)–(c).
Accordingly, as the record of this proceeding establishes that the application of an Override provides for the presumptive designation of the defendant as Risk Level Three sex offender, and as that there has been no showing sufficient to provide this Court with discretion to downwardly depart from the defendant's presumptive Risk Level Three designation, the defendant is hereby designated a Risk Level Three sex offender and is directed to timely comply with the registration provisions which are implicated by this Decision and Order, as set forth in Article 6–C of the NYS Correction Law.
The foregoing shall constitute the Decision and Order of this Court.