Opinion
No. 05461.
02-19-2016
The PEOPLE of the State of New York, Plaintiff, v. Imre MESZESAN, Defendant.
Robert S. Dean, Center for Appellate Litigation, New York, by Julia Busetti, Esq., for Defendant. Cyrus Vance, Jr., New York County District Attorney's Office, New York, by Erin Reid, Esq., for the People.
Robert S. Dean, Center for Appellate Litigation, New York, by Julia Busetti, Esq., for Defendant.
Cyrus Vance, Jr., New York County District Attorney's Office, New York, by Erin Reid, Esq., for the People.
JUAN M. MERCHAN, J.
This matter came before this Court on February 5, 2016, for a hearing pursuant to the Sex Offender Registration Act (hereinafter “SORA”), to determine the Defendant's level of risk to re-offend. The Board of Examiners of Sex Offenders (hereinafter “the Board”), assessed the Defendant a Total Risk Factor Score of 50 on the Risk Assessment Instrument (hereinafter “RAI”), thus placing him in the Level I risk to re-offend category.
Background
According to the Case Summary provided by the Board and the grand jury minutes submitted by the People, the instant offense occurred on November 13, 2011 and involved an adult female stranger whom the Defendant followed into an apartment building. As the victim climbed the stairs inside the building, the Defendant grabbed her hips and buttocks from behind and lifted her skirt up to her waist. The victim screamed and kicked the Defendant, at which point he stepped back and made a shushing gesture with his hand. When the victim continued to scream, the Defendant gestured with his hand simulating a gun. He then exited the building.
On November 20, 2012, the Defendant was convicted by plea of guilty to Sexual Abuse in the First Degree in violation of Penal Law 130.65(1), and Burglary in the Second Degree (as a sexually motivated felony) in violation of Penal Law 140.25(2) and 130.91(1). Defendant was sentenced to five years incarceration to be followed by five years of post-release supervision. Although Defendant's conditional release date is February 22, 2016, it is anticipated that he will be deported to his native country of Hungary upon release. If not deported, the Board anticipates that he will be supervised on a specialized community supervision caseload until February 22, 2021.
The Defendant's criminal history began on July 7, 2011, when he was arrested for public lewdness in Suffolk County. It was during the pendency of that case, while released on his own recognizance, that Defendant committed the instant offense. Following the instant conviction, he was convicted on the Suffolk County matter on February 30, 2012, and sentenced to 90 days in jail.
While incarcerated, the Defendant was referred to the Alcohol and Substance Abuse (ASAT) program. He also completed the Sex Offender Program in August of 2015. The Discharge Summary from the Sex Offender Program indicates that the Defendant admitted to having sexually victimized more individuals than originally documented. Lastly, the Defendant's disciplinary record is considered satisfactory and remains incident free.
On or about November 11, 2015, the Board determined that Defendant is required to register as a sex offender pursuant to SORA. According to the RAI, the Board assessed Defendant the following points: 10 points for the use of forcible compulsion; 5 points for sexual contact over the victim's clothing; 20 points for the victim being a stranger; and 15 points for a history of substance abuse. Although the Board's suggested total risk factor score of 50 places Defendant in the Level I risk to re-offend category, the Board recommended an upward departure to Level II, based on the fact that (1) Defendant committed a sexually motivated offense (exposing himself in public) a few months prior to the instant offense, and (2) Defendant committed the instant offense while released in his own recognizance on the public lewdness case.
Contentions of the Parties
Defendant contends that an upward departure is not warranted. Specifically, Defendant argues that, even if the public lewdness conviction is an aggravating factor not accounted for on the RAI, it does not warrant a leap from Level I to Level II, since it would account for only five additional points and would only raise his total score to 55 points-squarely within the Level I range of 0 to 70 points. Defendant also argues that, in the interest of fairness and as a matter of public policy, his admissions regarding prior, uncharged sexual acts involving other victims should not be held against him, because they were made to therapeutic service providers.
The People agree with the Board's recommendation that an upward departure to Level II is appropriate. In support, the People cite the following factors: (1) Defendant was charged with exposing himself in public a few months before the instant offense; (2) the instant offense occurred while Defendant was released on his own recognizance on the public lewdness matter; (3) Defendant's conduct in the instant case would have likely escalated to a more serious offense had he not been deterred by the victim's screaming and kicking; (4) Defendant's own admissions regarding additional victims of prior, uncharged sexual offenses; and (5) Defendant's limited release plan, which contains no formal treatment plan to address his sexually deviant behavior.
Legal Discussion
A. SORA Risk Level Determination
Correction Law 168–n requires a court making a risk level determination pursuant to SORA to render an order that “an offender is a sexual predator, sexually violent offender, predicate sex offender prior to the discharge, parole, release to post-release supervision or release of such offender.” In addition, applying the guidelines established in Correction Law 168–l, the court must make a determination “with respect to the level of notification, after receiving a recommendation from the board.” Correction Law 168–n(1) and (2).
According to SORA guidelines, specific risk factors are measured to determine whether a defendant should be classified as a Level I sex offender in cases where the risk of repeat offense is low, Level II if the risk of repeat offense is moderate, or Level III where the risk of repeat offense is high and “there exists a threat to the public safety.” Correction Law 168–l(6)(c).
In cases where the defendant is designated a Level II or Level III sex offender, law enforcement agencies with jurisdiction over the defendant must be notified in order to disseminate relevant information, including a photograph and description of the offender, exact name and any aliases used, exact address, background information such as the offender's crime of conviction, mode of operation, type of victim targeted, the name and address of any institution of higher education at which the sex offender is enrolled, attends, is employed or resides, and the description of special conditions imposed on the offender to any entity with vulnerable populations related to the nature of the offense committed by such sex offender. Correction Law 168 –1(6)(b) and (c).
Any sex offender who is classified Level I, is required to register annually for a period of twenty years. Correction Law 168–h(1). Any Level II or Level III sex offender is required to register annually for life. Correction Law 168–h(2). Unlike Level III sex offenders who must personally verify their address every ninety calendar days with local law enforcement agencies, Level I and Level II sex offenders must register by mail annually and in person every three years. Correction Law 168–f(2).
Although the Board recommends an initial risk assessment, the final determination is within the sound discretion of the Court. People v. Pettigrew, 14 NY3d 406, 408 (2010). The role of the court is to examine all relevant evidence and not merely to adopt the recommendations set forth in the RAI. People v. Reynolds, 68 AD3d 955, 956 (2d Dep't 2009). In making this determination, “the court shall review any victim's statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations.” Correction Law 168–n(3). The court “possesses the discretion to impose a lower or a higher risk level if it concludes that the factors in the RAI do not result in an appropriate designation.” People v. Mingo, 12 NY3d 563, 568 (2009).
Pursuant to Correction Law 168–n(3), the People bear the burden of proving the facts supporting the determinations by clear and convincing evidence. A departure from the sex offender's presumptive risk level is generally only warranted where “there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines.” Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 (2006); People v. Fernandez, 91 AD3d 737 (2d Dep't 2012).
“In determining whether an upward departure is permissible ... the court must [first] determine whether the People have articulated, as a matter of law, a legitimate aggravating factor. Next, the court must determine whether the People have established by clear and convincing evidence, the facts supporting the existence of that aggravating factor in the case before it.” People v. Williams, 128 A.D. 103, 1039 (2d Dep't 2015). “If, upon examining all of the circumstances relevant to the offender's risk of reoffense and danger to the community, the court concludes that the presumptive risk level would result in an underassessment of the risk or danger of reoffense, it may upwardly depart.” Id.; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4.
As an initial matter, this Court finds that the People have established by clear and convincing evidence, through their use of the Board's case summary and grand jury minutes, that the Defendant should be assessed the following points:10 points for the use of forcible compulsion; 5 points for sexual contact over the victim's clothing; 20 points for the victim being a stranger; and 15 points for a history of substance abuse. Based on the above, Defendant is scored 50 points, placing him in the Level I risk to re-offend category.
Further, this Court finds that an upward departure to Level II is warranted, based upon the following aggravating factors, each of which bears on the Defendant's risk of recidivism: first, although Defendant's public lewdness case in Suffolk County was not factored into the RAI because the date of that conviction followed the Defendant's conviction on the instant matter, it is no less significant in determining Defendant's risk to reoffend. That, in addition to the fact that Defendant committed the instant offense while released on his own recognizance on the public lewdness case, demonstrates that Defendant is at a higher risk to reoffend than initially assessed.
Even more troubling are Defendant's own admissions involving additional, uncharged sexual offenses, including:
Masturbating in my car while watching women walking on the street, in parking lots, filming women that were attractive to me and dressed provocatively with lewd intent, taking up-skirt photos of them, masturbating in public areas where I came across women I found attractive, in stores, parking garages, empty streets. I touched and fondled and groped other women. I did all these between 2000 and 2011 with more or less frequency but with a worsening tendency as time went by.
NYS Department of Corrections and Community Supervision Sex Offender Counseling and Treatment Program Discharge Summary, pp. 3.
An upward departure is warranted based on these admissions alone. See People v. Labarbera, 41 Misc.3d 321, 336 (Sup.Ct. New York Cty.2013) ( “defendant's admission to sexual intercourse with at least five [additional] children alone warrants an upward departure”); People v. Seils, 28 AD3d 1158 (4th Dep't 2006) (“[defendant's] prior admission ... that he previously had molested multiple children, despite the fact that defendant was never charged with those sex offenses ... justif[ies] the upward departure from the presumptively correct classification of defendant as a level two risk”). As in Labarbera, the Defendant's admissions in the instant case demonstrate a “willingness to act on his depraved fantasies,” 41 Misc.3d at 335, as he recounted times when he touched, groped and fondled women. Clearly, the Defendant's presumptive Level I (low risk) classification does not adequately address his likelihood of reoffense and the heightened danger he will likely pose to the community. See People v. Padin, 122 AD3d 600 (2d Dep't 2014).
Although Defendant argues that, in the interest of fairness and as a matter of public policy, the confessions he made during treatment should not be held against him, this Court cannot in good faith turn a blind eye and ignore such alarming admissions. Defendant is correct in asserting that, as a matter of public policy, open and honest therapeutic dialogue in the treatment of sex offenders should be encouraged. However, this Court cannot eschew its responsibility to protect the community by simply ignoring indications of increased risk that an individual sexual offender poses to the public, particularly in the face of unequivocal admissions regarding repeated, uncharged deviant sexual conduct.
This Court must balance the compelling interests of a sex offender's reasonable but diminished expectation of privacy in the prison system's sex offender treatment program , as well as the overall benefits of such treatment to him and others, with the need to adequately protect the public from known sexual predators. Here, the overarching duty to protect the public outweighs any chilling effect that the decision may have on individual sex offenders' ongoing therapeutic treatment. This Court recognizes the need for and the importance of therapeutic treatment for sex offenders and the open dialogue that such treatment requires, however the safety of the community at large takes precedent over the treatment of an individual sex offender. Indeed, the very purpose of evaluating a sex offender's risk level pursuant to SORA, is to protect the public from sexual predators. See Id.; People v. Moi, 8 Misc.3d 1012(A) *10 (Sup.Ct. Westchester Cty.2005) (analyzing the bill jacket relating to the introduction of the Sex Offender Registration Act in the New York State Assembly and Senate in 1996). To argue that public policy supports otherwise would undercut the clear purpose of SORA.
Although the People did not make this argument, participants in the Department of Correctional Services and Community Supervision (“DOCCS”) Sex Offender Counseling and Treatment Program sign a limited waiver of confidentiality (see DOCCS Treatment Program Manual, found at: http://www.doccs.ny.gov/ProgramServices/ SOCTP—Guidelines—Nov08.pdf.). Under that waiver, there are a number of exceptions to participants' confidentiality, including “sharing any/all homework assignments, program evaluations, discharge summaries and other related material of the Sex Offender Counseling and Treatment Program ... [with] the Board of Examiners of Sex Offenders” (see Partial Waiver of Confidentiality and Acknowledgment Form, attached to DOCCS Treatment Program Manual, pp. 36–37). Assuming that the defendant signed the waiver, this cuts against the defendant's present public policy argument.
Thus, contrary to defense counsel's argument, public policy demands “an accurate determination of the risk a sex offender poses to the public.” Mingo, 12 NY3d at 574. That is the “paramount concern.” Id. For this reason, this Court must reject Defendant's argument that public policy supports limiting a court's reliance on treatment admissions when determining a sex offender's risk to the community.
In addition to Defendant's prior charged and uncharged sexual offenses, this Court finds that Defendant's release plan, which contains no formal treatment protocol, is another aggravating factor in support of an upward departure. Defendant has demonstrated, through his actions and his own admissions, that he has a proclivity to commit escalating sexual offenses. However, Defendant's Discharge Summary indicates that his plan to reduce his risk of recidivism simply “revolve[s] around utilizing religion with no formal treatment plan to address the addictions he identified.” Sex Offender Counseling and Treatment Program Discharge Summary, pp. 4. In light of the above aggravating factors, Defendant's failure to acknowledge his need for formal sex offender treatment further supports an upward departure to Level II.
As to the People's argument that an upward departure is warranted because of the likelihood that an even more grave offense might have been committed had the victim not screamed or kicked the Defendant, this Court declines to speculate on such matters for purposes of this decision. The “Sex Offender Registration Act: Risk Assessment Guidelines” make clear that a court may grant an upward departure, “where it is evident that an offender intended to rape his victim.” Commentary at 9. Based on the evidence presented at the hearing, this Court cannot assert that the Defendant's intent to rape the victim was “evident.” Although the Defendant groped his victim, he backed off and exited the building almost immediately after she kicked him and screamed. As serious and disturbing as these facts may be, they do not clearly evince Defendant's intent to rape the victim. Further, reliance on this factor is not necessary to reach this Court's conclusion regarding an upward departure in light of the aggravating factors recited above.
In sum, this Court finds that the People have presented ample, and at the very least, clear and convincing evidence, to support an upward departure from Level I to Level II. Specifically, this Court notes: (1) Defendant's public lewdness conviction a few months prior to the instant offense; (2) the fact that Defendant committed the instant offense while released on his own recognizance on the open public lewdness case; (3) Defendant's own admissions regarding additional victims of prior, uncharged sexual offenses; and (4) Defendant's limited release plan, which contains no formal treatment plan to address his sexual addiction.
CONCLUSION
Based on the foregoing, the People's application for an upward departure is granted. Accordingly, this Court finds that the Defendant is a Level II sex offender.
The above constitutes the decision and order of this Court.