Opinion
CR-040913-18SU
07-08-2020
The PEOPLE of the State of New York, v. Vincent PERSICO, Defendant.
HONORABLE TIMOTHY D. SINI, District Attorney of Suffolk County THE MATERA LAW FIRM, Michaelangelo Matera, Esq., Johanna Poremba, Esq., of counsel, 560 Broadhollow Road, Suite 303, District Court Bureau, Cohalan Court Complex, Melville, New York 11747, Central Islip, New York 11722
HONORABLE TIMOTHY D. SINI, District Attorney of Suffolk County
THE MATERA LAW FIRM, Michaelangelo Matera, Esq., Johanna Poremba, Esq., of counsel, 560 Broadhollow Road, Suite 303, District Court Bureau, Cohalan Court Complex, Melville, New York 11747, Central Islip, New York 11722
Stephen L. Ukeiley, J. Defendant stands convicted after a plea of guilty on May 19, 2020, to Sexual Misconduct with an Animal in violation of Penal Law § 130.20(3), a Class "A" misdemeanor, and was sentenced to six (6) years of probation with sex offender conditions. The defendant is currently a registered Level Two sex offender based on three (3) prior misdemeanor convictions for Sexual Abuse in the Second Degree in violation of Penal Law § 130.60(2), for having sexual contact with a minor under the age of fourteen (14) in 1998. I. Defendant's SORA Hearing — June 12, 2020
On June 12, 2020, this Court conducted a hearing in accordance with the Sex Offender Registration Act ("SORA") pursuant to Correction Law § 168-n to determine the defendant's appropriate level of community notification as a convicted sex offender. Due to the COVID-19 Pandemic, and in accordance with the safety procedures and protocols implemented by the Governor of New York, the Chief Administrative Judge of the State, and the District Administrative Judge of the 10th Judicial District, the SORA Hearing was conducted via Skype with the consent of both counselors and the defendant. The Court, counselors, and the defendant appeared remotely. At the hearing, neither side elicited testimony from witnesses, but instead opted to rely upon the documentary evidence and oral argument. 1. The Evidence
The evidence introduced at the hearing consisted of the Risk Assessment Instrument ("RAI") prepared by the People; defendant's criminal history; Suffolk County Probation Department Digital and Multimedia Forensics Lab Digital Evidence Examination Reports; Interim Probation Summary prepared by Probation Officer Lara Watrous, dated May 15, 2020; Suffolk County Police Department Multi-system Report; report prepared by Constance Augustyn, LSCSW-R, CCSOTS, CMFSW, dated May 10, 2020; Psychological Treatment Summary reports prepared by Dr. Stephen Loomis, Ph.D., dated March 18, 2019 and June 10, 2020; and curriculum vitae of Dr. Stephen Loomis, Ph.D.
2. Position of the Parties
The RAI submitted by the People indicates a score of sixty-five (65) points which equates to a presumptive Level One (low risk to re-offend) designation. However, the People request an upward departure to a Level Three designation based on the defendant's current status as a Level Two sex offender, his lack of impulse control, the nature of the current charge, and his admission to having engaged in additional, uncharged acts of sexual misconduct against minors and a dog.
A defendant scoring between 0 - 70 on the RAI presumptively falls within the range of a Level One sex offender (low risk); a score between 70 - 110 would be a presumptive Level Two offender (moderate risk); and a score above 110 would be a presumptive Level Three sex offender (high risk) (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary 1, 3 [2006] ).
In computing defendant's risk assessment, the People assessed twenty (20) points under risk factor 6, Other Victim Characteristics. The People argue that the victim in this case, a golden doodle canine, should be considered a physically helpless victim because an animal does not have the ability to communicate, and, thus, according to the People, should be evaluated similar to a sleeping victim.
The People further assessed thirty (30) points under risk factor 9, Number and Nature of Prior Crimes, for three (3) prior Class "A" misdemeanor convictions for Sexual Abuse in the Second Degree in violation of Penal Law § 130.60(2) from 1998. In addition, under risk factor 13, Conduct While Supervised, the defendant was assessed ten (10) points due to instances of unsatisfactory compliance while on interim probation. Finally, the defendant was assessed five (5) points under risk factor 14, Release Environment, due to the fact he will be under the supervision of the Department of Probation for the remainder of his sentence.
In response, the defendant disputes the points assessed under risk factor 6. Specifically, the defendant argues that this risk factor, which pertains to "mental defect," "incapacity," or "physical helplessness" of the victim, is applicable to humans, and not the instant matter where the victim is a dog.
Defendant further argues that the People failed to demonstrate a justification for an upward departure from a Level One designation to Level Three. Alternatively, in the event the Court makes such a determination, defendant asserts that mitigating factors, such as the absence of any new charges for acts against minor children, preclude an upward departure and warrant a downward departure. Notably, even if defendant were to succeed on each and every argument countered, it is undisputed that he will continue to remain a registered sex offender as a result of his prior convictions. II. Analysis
Under SORA, individuals convicted of certain sex offenses, including Penal Law § 130.20(3), must register with the State Division of Criminal Justice Services, which maintains a Sex Offender Registry that is available to the public (see Correction Law Art. 6-C ). The statute's legislative history provides that the "primary government interest" underlying SORA is to protect the public from sex offenders (see L. 1995, ch. 192, § 1 ["Legislative purpose or findings"]; People v. Mingo , 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ).
A SORA Hearing "determines the risk of reoffense by a person convicted of a qualifying sex offense and requires that individual to register with law enforcement officials according to that risk level" ( People v. Pettigrew , 14 N.Y.3d 406, 901 N.Y.S.2d 569, 927 N.E.2d 1053 [2010] ). At a hearing on the defendant's risk level assessment, the People bear the burden of proving facts supporting the determination sought by clear and convincing evidence (see People v. Wells , 138 A.D.3d 947, 30 N.Y.S.3d 198 [2d Dept. 2016] ).
The hearing is analogous to a sentencing determination in that the Court has latitude in the type and nature of evidence it may consider and is not bound by the formal rules of evidence ( People v. Shackelford , 2020 NY Misc. LEXIS 2775, 2020 WL 3443909 [Suffolk Cnty. Sup. Ct. June 12, 2020] ; People v. Victor R. , 186 Misc 2d 28, 715 N.Y.S.2d 283 [Bronx Cnty. Sup. Ct. 2000] ). "[F]acts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated" ( Correction Law § 168-n [3] ; see also People v. Martinez , 125 A.D.3d 735, 3 N.Y.S.3d 408 [2d Dept. 2015] ). "[I]n making the determinations the court shall review any victim's statement and any relevant materials and evidence submitted by the sex offender and the district attorney ... and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations" ( People v. Vasquez , 38 Misc.3d 408, 951 N.Y.S.2d 833 [N.Y. Cnty. Sup. Ct. 2012] [citing Correction Law § 168-n [3] ]; see generally People v. Francis , 30 N.Y.3d 737, 71 N.Y.S.3d 394, 94 N.E.3d 882 [2018] ).
1. Due Process Was Afforded the Defendant
Due to the fact a SORA Hearing is regulatory in nature, rather than a criminal proceeding, and is "[n]ot intended to serve as a form of punishment" (see People v. Gravino , 14 N.Y.3d 546, 902 N.Y.S.2d 851, 928 N.E.2d 1048 [2010] ; Pettigrew , supra ), "the due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial" ( Doe v. Pataki , 3 F.Supp.2d 456, 470 [SD.N.Y. 1998] ; see People v. Gutierrez-Lucero , 103 A.D.3d 89, 98, 956 N.Y.S.2d 131 [2d Dept. 2012] ). However, a sex offender is entitled to certain fundamental due process protections, including notice and an opportunity to be heard.
More specifically, these rights include: (1) a judicial determination of risk level designation; (2) adequate notice of the classification proceeding; (3) notice of the proceeding, including a statement of its purpose; (4) advice of counsel; (5) pre-hearing discovery; (6) proof of the facts supporting each risk factor by clear and convincing evidence; and (7) a right of appeal (see Correction Law § 168-n ; People v. David W. , 95 N.Y.2d 130, 711 N.Y.S.2d 134, 733 N.E.2d 206 [2000] ). The Court finds that the defendant was afforded due process in that he received adequate notice of the classification proceeding, was represented by counsel, was given ample opportunity to review the documents submitted by the People, and was afforded the opportunity to be heard. Moreover, in rendering its determination, the Court shall only consider the evidence introduced at the SORA Hearing, and the arguments made by counsel (see People v. McClinton , 153 A.D.3d 738, 61 N.Y.S.3d 57 [2d Dept. 2017] ).
2. Defendant's Risk Assessment Score
The Court finds that the People established by clear and convincing evidence forty-five (45) of the sixty-five (65) points assessed in their RAI, which correlates to a Level One sex offender. As discussed below, the Court deducted twenty (20) points under risk factor 6, and affirmed the assessed points in all other respects.
A. Defendant is Assessed Forty-Five (45) Points
In computing the risk assessment, the defendant was properly assessed thirty (30) points under risk factor 9 for his prior convictions of Sexual Abuse in the Second Degree. Contrary to defendant's assertion, his New York State Identification Number Repository Inquiry Report ("NYSID") clearly indicates that he was convicted on April 15, 1998 of three (3) separate counts of violating Penal Law § 130.60(2), Sexual Abuse in the Second Degree, and was sentenced to three (3) years of probation (People's Exhibit 5). Defendant offered no credible evidence to refute the accuracy of the convictions reflected on the NYSID.
The defendant was further appropriately assessed ten (10) points under risk factor 13 for unsatisfactory conduct while on interim probation. According to both the Suffolk County Probation Department Digital and Multimedia Forensics Lab Report, dated May 12, 2020, and the Probation Department's Summary of Interim Probation, dated May 15, 2020, while on probation the defendant was in possession of his sister's tablet containing two (2) pornographic video files (People's Exhibits 4 and 7). The majority of the remaining documents and downloads from the tablet had been deleted and were unrecoverable by the Probation Department (id. ). Being in possession of the tablet in and of itself was an unauthorized act in violation of the defendant's conditions of probation. Further, the first video, which was approximately five (5) minutes in length, "[d]epicted an adult male, unclothed and tied to a fence ... receiv[ing] oral sex by an unknown female dressed in a manner consistent with adolescent females." The second video, approximately twelve (12) minutes in length, contained "[n]umerous adult heterosexual couples engaging in various sex acts" (People's Exhibit 4). According to Probation Officer Lara Watrous, defendant admitted viewing the sexually stimulating videos in contravention of his probation conditions (People's Exhibit 7). Lastly, the defendant was properly assessed five (5) points for his release with supervision.
B. Risk Factor 6 Does Not Make Considerations For Animal Victims
The Court deducted twenty (20) points under risk factor 6, Other Victim Characteristics, because the People failed to offer proof that points may be assessed for an animal victim, in this case a dog, as a "physically helpless" victim. In what may be a matter of first impression, the People ask this Court to expand risk factor 6 to deem animal victims of sexual misconduct as "physically helpless" for the purpose of a risk assessment.
Notwithstanding the thoughtful reasoning set forth in the People's argument, the Court is constrained by the law as written. Neither counsel provided legal authority specifically addressing this issue. Moreover, an electronic search undertaken by the Court did not result in a singular instance where points were assessed under risk factor 6 due to the "physical helplessness" of an animal victim, and there is no apparent discretionary authority to do so.
A review of the definition of the pertinent terms set forth in the Penal Law reasonably suggests the Legislature did not intend for risk factor 6 to apply to animal victims. Section 130.00(7) of the Penal Law defines "physically helpless" as "a person [who] is unconscious or for any reason is physically unable to communicate unwillingness to an act" (emphasis added). Further, Penal Law § 10.00 defines "person" as "[a] human being , and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality" ( Penal Law § 10.00(7) [emphasis added] ). There is no exception for animals.
The omission of the term "animal" is the clearest indication that no points should be assessed for animal victims under risk factor 6. Had the Legislature intended for a point assessment, the term "animals" would have been included. The Court further notes that in addressing the "physically helpless" criteria, the Risk Assessment Guidelines and Commentary exclusively refers to "people who cannot protect themselves or effectively report their abuse" (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary , supra , at 11[emphasis added] ).
For example, pursuant to Agricultural and Markets Law ("AML") § 108(24), a "dangerous dog" is defined as a dog "which (i) without justification attacks a person , companion animal as defined in subdivision five of section three hundred fifty of this chapter, farm animal as defined in subdivision four of section three hundred fifty of this chapter or domestic animal as defined in subdivision seven of this section and causes physical injury or death, or (ii) behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury or death to one or more persons , companion animals , farm animals or domestic animals or (iii) without justification attacks a service dog, guide dog or hearing dog and causes physical injury or death (emphasis added). The AML uses a similar definition for the term "person" as the Penal Law (see AML § 108(17) ).
Although this exclusion appears primarily limited to risk factor 6, it may have a significant impact upon the presumptive designation of the sex offender and the resulting reporting responsibilities. Parenthetically, if it was the intent of the Legislature to include animal victims as "helpless victims" for SORA purposes, it is the appropriate governing authority to make any necessary changes to the law.
Accordingly, after deducting the assessment under risk factor 6, defendant's score is forty-five (45) points, a presumptive Level One (low risk) offender.
3. Departure from the Risk Assessment Recommendation
The ultimate determination on a sex offender's level designation rests with the Court. As such, while every consideration is to be afforded the recommended classifications, the Court is not constrained by them ( Francis , supra ; People v. Dorato , 291 A.D.2d 580, 738 N.Y.S.2d 400 [3d Dept. 2002] ; People v. Jusino , 11 Misc.3d 470, 812 N.Y.S.2d 785 [N.Y. Cnty. Sup. Ct. 2005] ). In the instant matter, the People request an upward departure from the presumptive Level One designation to Level Three.
It is well-established that the Court may grant an upward departure where the People "[i]dentify an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the risk assessment instrument ... and prove the facts in support of the aggravating factor by clear and convincing evidence" ( People v. Suarez , 163 A.D.3d 884, 81 N.Y.S.3d 569 [2d Dept. 2018] ; People v. Ragabi , 150 A.D.3d 1161, 1161, 52 N.Y.S.3d 655 [2d Dept. 2017] ; see People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). "Once this burden is satisfied, the court may, in its discretion, choose to upwardly depart if the factor indicates that the point score on the risk assessment instrument has resulted in an under assessment of the offender's actual risk to the public" ( Suarez , supra ; Ragabi , supra ).
A. An Upward Departure Is Warranted Due to Aggravating Factors
Here the People have demonstrated, by clear and convincing evidence, aggravating factors that establish a higher likelihood of reoffense or danger to the community than that considered by the RAI (see Gillotti , supra ; People v. Harrell , 168 A.D.3d 890, 91 N.Y.S.3d 238 [2d Dept. 2019] ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary , supra , at 4). This documentary evidence clearly establishes that the defendant's deviant sexual misconduct, which has persisted for the better part of three (3) decades, is far more deviant and troublesome than previously reported to the Probation Department or represented on the RAI.
The People contend that the defendant has consistently demonstrated a lack of impulse control and has been deceptive and untruthful as to the extent of his deviant sexual misconduct, even while under supervision. According to Probation Officer Lara Watrous, the defendant failed to disclose on either the sexual history questionnaire or during his polygraph examination that he had engaged in sexual misconduct other than the offenses for which he had been convicted. The defendant's lack of veracity was revealed on December 18, 2019, when "the sexual history polygraph was administered to which he was found deceptive" (People's Exhibit 7).
Defendant further denies that he was convicted of three (3) counts of Penal Law § 130.60(2) in 1998. However, no evidence was provided to refute the defendant's NYSID. Notably, the number of prior convictions for misdemeanor sex crimes is a fact without distinction with regard to the RAI because a conviction results in a thirty (30) point assessment, and the number of points does not increase based upon additional convictions. However, the precise number of convictions may be a consideration in connection with an aggravating factor for an upward departure from the presumptive sex offender Level designation.
The aggravating factors upon which the People rely were discovered after defendant was given the opportunity to correct his prior misstatements and omissions. Defendant thereafter admitted to taking part in several additional sexually deviant acts with children for which he had not been charged. These incidents included "licking a 2-year-old's vagina while he masturbated," "touching the penis of a 3-year-old while he masturbated himself and the child," "perform[ing] oral sex on the 3-year-old," and "plac[ing] his penis into the boy's mouth" (id. ). He further admitted that he had viewed and masturbated "to child pornography" on a daily basis for many years during the 1990s (id. ).
Defendant further admitted to repeated sex acts against his own dog, which were alarmingly similar to the acts that resulted in his conviction in this case. In the instant matter, on September 13, 2018, defendant admitted to police that while at his sister-in-law's residence, he "[p]ulled his pants down and placed peanut butter in his testicles" and proceeded to "kneel[ ] over [his sister-in-law's] dog and allowed the dog to lick his testicles for his own sexual gratification" (People's Exhibit 6, at 12). After being deceptive on the polygraph examination on December 18, 2019, defendant subsequently admitted that over the course of one (1) month he took "[h]is dog twice a day into his bedroom and placed peanut butter on his testicles letting the dog lick it off to ejaculate" (People's Exhibit 7). Defendant, a painter by trade, also admitted to removing a pornographic book from the home of a client and using it to masturbate in an abandoned house (id. ).
The Court finds the Digital Evidence Examination Reports, the Multi-system Report, and Probation Officer Watrous' Reports to be both relevant and credible, and constitute reliable hearsay (see People's Exhibits 3, 4, 6 and 7). Defendant's repeated pattern of sexually deviant misconduct for which he has not been charged consists of violence against children and animals that are not adequately reflected in the RAI. As such, the risk assessment fails to provide a reasonable reflection as to the danger the defendant poses, and will continue to pose, to the community at-large.
Defendant has not disputed any of the incidents and there is no credible evidence to suggest this behavior will not continue. Contrary to the opinion set forth within the summaries of clinical psychologist, Dr. Stephen Loomis, Ph.D. (Defendant's Exhibits A and B), the defendant has not shown the Court any remorse or contrition for his actions or the undeterminable amount of psychological, physical, and emotional harm he has inflicted upon several children under the age of four (4) and multiple dogs. Moreover, he has not expressed any interest or desire to change. To the contrary, Sex Offender Treatment Specialist Constance Augustyn, LCSW-R, CCSOTS, CMFSW, reported on May 10, 2020, that the defendant "[m]eets the full criterion for a diagnosis of Pedophilia and has demonstrated little impulse control while under Probation supervision ..." (People's Exhibit 8).
With the spirit and intent of SORA in mind, based upon the foregoing aggravating factors, the Court finds that the defendant poses a high danger to the community at-large and there is a significant probability of reoffense, neither of which are accurately reflected on the RAI. Accordingly, the totality of the circumstances warrants an upward departure to a Level Three sex offender designation which is more in line with the dangerousness of the defendant and his risk of recidivism (see Harrell , supra [in upward departure from Level One to Level Three, holding the "totality of the circumstances warranted a departure to avoid an under-assessment of the defendant's dangerousness and risk of sexual recidivism"]; People v. Newman , 71 A.D.3d 488, 899 N.Y.S.2d 144 [1st Dept. 2010] [same, noting that the RAI failed to "[a]dequately account for the seriousness of defendant's criminal record, which consisted of a lengthy pattern of sexual offenses against children, demonstrating a very high risk of reoffending"]; People v. Duart , 84 A.D.3d 908, 923 N.Y.S.2d 149 [2d Dept. 2011] [upward departure from Level One to Level Three] ).
B. Lack of a Mitigating Factor to Warrant a Downward Departure
Defendant's argument for a downward departure is unpersuasive. In making this determination, the Court must engage in a multi-tiered analytical process; namely, (1) if the defendant has established, as a matter of law, the existence of an appropriate mitigating factor; (2) a factor which tends to establish a lower likelihood of reoffense or danger to the community; and (3) is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines ( Gillotti , supra [citing People v. Vaillancourt , 112 A.D.3d 1375, 978 N.Y.S.2d 517 [4th Dept. 2013] ]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary , supra , at 4). If the defendant overcomes the initial step, then the Court must further determine whether the defendant established sufficient facts in support of the application by a preponderance of the evidence (see Gillotti , supra , People v. Wyatt , 89 A.D.3d 112, 931 N.Y.S.2d 85 [2d Dept. 2011] ). Finally, the Court, using its discretionary authority, must weigh the various factors to determine whether the totality of the circumstances warrants a departure to avoid an over-assessment of the defendant's dangerousness and risk of sexual recidivism ( Gillotti , supra [citing People v. Knox , 12 N.Y.3d 60, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009] ] ). Here, in support of his request for a downward departure, the defendant asserts that he is gainfully employed as a painter, lives with his sister, and has her support. He also noted that his prior convictions were more than twenty (20) years ago and that the sexually stimulating material found on the unregistered device did not involve either children or animals. Presumably, defendant argues that credit should be afforded for his unauthorized viewing of pornography on his sister's tablet while under the supervision of the Probation Department because the pornography did not include minors. The Court gives no credence to this rationale and further the credible evidence fails to establish either a mitigating factor or the lower likelihood of recidivism. Notably, according to the Digital Evidence Examination Report dated May 12, 2020, one (1) of the unauthorized pornographic videos accessed by defendant depicted a female actor "dressed in a manner consistent with adolescent females" (People's Exhibit 4).
Based on the evidence presented at the hearing, the Court finds that the defendant has failed to establish, by a preponderance of the evidence, mitigating factors of a kind or to a degree not adequately taken into account by the Guidelines or which would establish a lower likelihood of re-offense (see Gillotti , supra) . Accordingly, the defendant's application for a downward departure is denied, and he is hereby designated a Level Three sex offender, with no further designation.
This shall constitute the decision and order of the Court.