Opinion
2013-12-17
The PEOPLE of the State of New York, Respondent, v. Robert WATSON, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.
SWEENY, J.P., MOSKOWITZ, RICHTER, DeGRASSE, GISCHE, JJ.
Order, Supreme Court, New York County (Cassandra M. Mullen, J.), entered on or about November 15, 2010, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
Defendant, who seeks to have his sex offender status under SORA reduced from a level three to a level two, argues that 15 points were improperly assessed against him for “a history of drug or alcohol abuse” on the ground that he abstained from alcohol use while incarcerated for a crime he admittedly committed while he was drunk. Alternatively, he argues that the SORA court failed to take into consideration his unblemished record while incarcerated and other positive attributes which warranted a downward departure classifying him as only a moderate risk of re-offense or threat to the public.
This appeal was brought before the recent Court of Appeals decision in People v. Palmer, 20 N.Y.3d 373, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] which held that “only alcohol abusers should be...assessed a higher point level under the SORA guidelines, as opposed to occasional moderate social drinkers.” Defendant, however, makes it clear that the distinctions regarding alcohol use and abuse in that decision have no bearing in this case, nor do they apply to reduce his SORA assessment.
In assessing a sex offender's danger to the community, and therefore, its recommendation to the court hearing a SORA application, the Board of Examiners of Sex Offenders (BOSE) must consider 15 statutory factors, applying them in accordance with the Risk Assessment Guidelines developed to assess an individual applicant's risk of a repeat offense (Correction Law § 168–l[5]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] ). The evaluation is made using a Risk Assessment Instrument (RAI), identifying each factor which, if applicable, is assigned a numerical value. If a particular factor is not applicable, it is assessed at zero. The values are then tallied, resulting in a recommended risk assessment which is considered as presumptively correct at the SORA hearing before the court ( see People v. Ratcliff, 107 A.D.3d 476, 966 N.Y.S.2d 433 [1st Dept. 2009] ).
One of the factors BOSE considers is “whether the sex offender's conduct was found to be characterized by repetitive and compulsive behavior, associated with drugs or alcohol” (Correction Law § 168–1[5][a][ii] ). The guidelines clarify that if the individual has a history of drug or alcohol abuse “or was abusing drugs and or alcohol at the time of the offense,” 15 points will be assessed in that category (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15). Pursuant to the guidelines, BOSE or the court may choose to score zero points in this category, if the drug and/or alcohol abuse is “in the distant past, but [the defendant's] more recent history is one of prolonged abstinence” ( id.).
Since defendant admittedly committed his crime while intoxicated, this alone supports the 15 point assessment made against him in this category ( see People v. Birch, 99 A.D.3d 422, 952 N.Y.S.2d 10 [1st Dept. 2012] ). Thus the issue turns on whether his prolonged abstinence from alcohol use, while incarcerated, provides a basis for a 15 point reduction in this category. We find that it does not.
We have consistently held that even when alcohol use in the commission of the crime is remote in time, and the defendant has abstained from alcohol use for a prolonged period while incarcerated, such remoteness and abstinence are unreliable predictors of the risk for re-offense post-release, or to the threat posed by the sex offender to public safety ( see Birch, 99 A.D.3d at 423, 952 N.Y.S.2d 10, citing People v. Gonzalez, 48 A.D.3d 284, 285, 852 N.Y.S.2d 71 [1st Dept. 2008], lv. denied10 N.Y.3d 711, 860 N.Y.S.2d 483, 890 N.E.2d 246 [2008] ). Here, defendant, who was incarcerated for 22 years and has been at liberty only for a relatively short period of time, has not shown that his adherence to the regimen, routine and requirements of prison life have any bearing on what his behavior will be now that he is no longer under such supervision ( see People v. Gonzalez, 48 A.D.3d at 285, 852 N.Y.S.2d 71). Accordingly, the points for alcohol abuse were properly assessed and the SORA court correctly rejected defendant's argument that his abstinence shows he is at a lowered risk for a repeat offense.
The SORA court also providently exercised its discretion in denying defendant's application for a discretionary downward departure to a level 2 based upon claims that he had an exemplary record while incarcerated, has shown remorse for his crime, and is now a productive member of society ( see People v. Cintron, 12 N.Y.3d 60, 70, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009], cert. denied558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009]; People v. Johnson, 11 N.Y.3d 416, 418, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ). The record shows that defendant's good behavior was accounted for under the RAI. Factors which otherwise would have required the assignment of numerical values had he engaged in unsatisfactory conduct while incarcerated, were assessed at “zero” ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, p. 16; compare People v. Perez, 104 A.D.3d 403, 961 N.Y.S.2d 51 [1st Dept. 2013], lv. denied21 N.Y.3d 858, 970 N.Y.S.2d 495, 992 N.E.2d 423 [2013] ). In other words, because of defendant's good behavior in prison, there were no additional points imposed for an increased “potential for sexual recidivism” (People v. Salley, 67 A.D.3d 525, 526, 889 N.Y.S.2d 143 [1st Dept. 2009], lv. denied 14 N.Y.3d 703, 898 N.Y.S.2d 98, 925 N.E.2d 103 [2010] ).
We emphasize that a SORA risk-level determination is not an extended form of punishment for the sex crime committed, but a collateral consequence of the conviction intended to protect the public at large from the possibility of future crime (People v. Gravino, 14 N.Y.3d 546, 902 N.Y.S.2d 851, 928 N.E.2d 1048 [2010] ). A departure from a sex offender's presumptive risk level is generally warranted only 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; see People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008]; People v. Martinez–Guzman, 109 A.D.3d 462, 970 N.Y.S.2d 93 [2d Dept. 2013], lv. denied22 N.Y.3d 854, 2013 N.Y. Slip Op. 88896, 2013 WL 5716146 [2013] ). Although defendant's exemplary conduct in prison and his cooperation with prison authorities during a crisis are commendable, there is no evidence that this conduct further reduces his risk of re-offense below what is otherwise identified by the RAI.