Opinion
Docket No. CR-035966-23NY
07-26-2024
The People of the State of New York v. Kenneth Tsui, Defendant.
Unpublished Opinion
Robert Rosenthal, J.
On April 22, 2024, defendant pled guilty to Forcible Touching, pursuant to Penal Law § 130.52 (1). On July 10, 2024, he was sentenced to a Conditional Discharge — the condition being continuation of, and compliance with programming and treatment at New York Counseling for Change (NYCC) that had been imposed as a condition of sentence pursuant to an earlier forcible touching charge to which defendant pled guilty on December 13, 2023.
A hearing pursuant to the Sex Offender Registration Act (SORA) was commenced on July 10, 2024, at which the court determined that the Risk Assessment Instrument (RAI) placed defendant as a presumptive level two sex offender, with 85 points. Defendant requested a downward departure based on several factors, including defendant's family support, and because at the time of the offense in this case (the second offense), defendant had not yet received any of the treatment that had been imposed as part of the earlier sentence. The SORA hearing was continued to, for the court to consider defendant's application. In the time between the first part of the hearing and the continuation, the People submitted several cases to the court which the court has considered.
In many respects, the RAI is inflexible in its application and analysis and fails to take into account the particular characteristics of any given case or defendant. For this reason, "the level suggested by the RAI is merely presumptive and a SORA court possesses the discretion to impose a lower or higher risk level if it concludes that the factors in the RAI do not result in an appropriate designation" (People v Mingo, 12 N.Y.3d 563, 568 n. 2 [2009]). "[T]he 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. Not to allow for departures would, therefore, deprive the court of the ability to exercise sound judgment and to apply its expertise to the offender" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4-5 [2006]). "Generally a court may not depart from the presumptive risk level unless it concludes that 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... (id.). But where the circumstances of a particular case present a factor that is not adequately addressed by the guidelines, and where fairness and justice require it, a departure is appropriate. This case presents just such a circumstance.
An appropriate mitigating factor is one the that tends to establish a lower likelihood of re-offense or danger to the community than the presumptive risk level calculated on the RAI. The standard to apply in evaluating a defendant's application for a downward departure from the presumptive risk level is proof by a preponderance of the evidence of facts establishing an appropriate mitigating factor of a kind, or to a degree, otherwise not adequately taken into account by the guidelines (see People v Gillotti, 23 N.Y.3d 841, 853, 864 [2014][internal citations omitted).
The level two presumptive assessment includes 30 points for risk factor 9, imposed because of defendant's prior sex crimes conviction. Risk factor 10 adds ten additional points because that conviction occurred within three years of the conviction at issue here. Thus, a total of 40 points are based on the occurrence of the prior conviction — without regard for the facts and circumstances of the prior criminal act or the nature or consequences of the sentence imposed. The RAI assessment and guidelines fail to take into account adequately, or at all, what this court finds are mitigating factors of Mr. Tsui's circumstance.
Facts and circumstances critical to this decision include that on December 13, 2023, under docket number CR-025862-23NY, defendant pled guilty to one count of Forcible Touching, pursuant to PL 130.52 (2) and was sentenced to a Conditional Discharge, the condition being compliance with treatment and programming at Queens Counseling for Change (QCC), which has been replaced by NYCC. The conduct at issue in that case occurred in the subway on August 5, 2023. Inherent in the People's plea offer, and defendant's acceptance of it, is the acknowledgement by all involved that defendant was in need of treatment, programming, and rehabilitation — for his own sake and in the interest of public safety — to avoid future similar criminal conduct. That plea resulted in defendant's only conviction prior to this instant matter.
The instant case (docket number CR-035966-23NY) arises from conduct occurring in the subway on December 19, 2023, just six days after the plea on the earlier case. That was prior to defendant having attended any treatment sessions at QCC or NYCC. Thus, at the time of the second arrest defendant was just as he was at the moment he committed the initial offense and when he pled guilty in that case — in need of the treatment and programming imposed as the sentence in the original case.
Pursuant to the sentence in the first case, defendant has been attending NYCC since January 9, 2024. The court is not aware of any claim that defendant intentionally delayed his intake at NYCC. He is compliant with the program. He attends weekly group sessions and weekly individual sessions. As of July 23, 2024, the date of the latest report received by the court, he had attended 50 scheduled sessions. He has not reoffended.
The RAI assessment of 40 points for the prior offense does not take into account the circumstances and conditions of the original plea. Nor does it take into account that at the time of the second incident and arrest, defendant had not received any benefit of the treatment that all involved in the original case knew he needed. The purpose of the original sentence was to treat whatever aspect of his person or character — be it social, psychological, psychiatric, or otherwise — that caused or contributed to the criminal conduct. In other words, to change or transform the person who committed the first offense into someone who would not again commit that type of conduct.
The second offense occurred before he had the opportunity to engage in — let alone benefit from that treatment. Thus, he committed the second offense bearing the same social, psychological, or psychiatric characteristics that he bore when he committed and was sentenced for the first. Had an RAI assessment been conducted after the first arrest, he would have been assessed as a level one offender — as his assessment would not have included the additional 40 points for the prior conviction.
The court is aware that the plea in the first case did not render Mr. Tsui SORA eligible, and thus no RAI assessment would be conducted in that matter.
It would be unfair and unjust in this particular case to rely on a rigid and absolute assessment instrument to impose a higher classification on this defendant, especially when, as the court is informed by NYCC, he has been participating in treatment, and, as is undisputed, he has not reoffended. Indeed, he presents a lesser risk of offending at this moment than he did at the time he committed the offense in this, the second, matter.
While it is not the basis of the downward departure here, the Guidelines commentary cites an "exceptional" response to sex offender treatment as a factor warranting a downward departure (SORA Guidelines and Commentary at 17). Thus, the Guidelines commentary acknowledges that treatment may reduce the risk of reoffending and the sex offender level assigned. That is the same principle underlying the offer and plea in the first case. To assess additional points for the second case where the defendant did not have the time or opportunity to benefit from the treatment imposed in the first case is contrary to that principle.
That is particularly true here, where NYCC reports defendant's continued improvement and efforts to participate, that he has a good understanding of treatment material, shares personal information, is open to clinician feedback, and "appears to be able to apply treatment topics to current life experiences." Further, it seems a most obvious indication of successful response to treatment that — as is intended — defendant has not reoffended. While, the downward modification here does not rest on the term "exceptional response to sex offender treatment," it is not clear what more could be required of a defendant to satisfy that term than effort, understanding, application of treatment to life events, and no new offenses.
Defendant is 26 years old. His criminal contacts are limited, and all occurred during a very brief period. He accepted responsibility for his criminal acts. He acknowledged — and continues to acknowledge — his need for treatment. He remains successfully engaged in that treatment. This was the purpose of the People's hopeful plea offer in the first case, and of defendant's guilty pleas. The facts and circumstances strongly support the proposition that there would have been no second arrest if the treatment had begun sooner. To label this particular defendant a level two sex offender and burden his life with all of the obligations, limitations, and deprivations that would come with such a designation would be purposeless and unjust.
Finally, if defendant is again convicted of a sex offense, an assessment may well result in a level three classification, if not based solely on the RAI presumptive assessment level, then pursuant to an upward departure that might be appropriate if defendant shows himself to be resistant to treatment and rehabilitation. Thus, adjudicating him a level one offender poses no peril. Either he continues to live a law-abiding life as a level one offender, or in the event he commits another offense, he would suffer the same consequences as if he had been deemed a level two offender by this court.
For these reasons, the court is granting defendant's request for a downward departure. Defendant is adjudicated a level one sex offender.
The foregoing constitutes the opinion, decision, and order of the court.