Opinion
62/2011
07-22-2016
The People of the State of New York, Plaintiff, v. Modesto Encarnacion, Defendant.
Honorable Michael J. McMahon District Attorney Richmond County by Assistant District Attorney Ann Thompson 130 Stuyvesant Place Staten Island, NY 10301 (718) 556- 7126 To: The Legal Aid Society Criminal Appeals Division by Lawrence T. Hausman,, Esq. 199 Water Street New York, NY 10038 (212) 577-7989
Honorable Michael J. McMahon District Attorney Richmond County by Assistant District Attorney Ann Thompson 130 Stuyvesant Place Staten Island, NY 10301 (718) 556- 7126 To: The Legal Aid Society Criminal Appeals Division by Lawrence T. Hausman,, Esq. 199 Water Street New York, NY 10038 (212) 577-7989 Mario F. Mattei, J.
On July 13, 2011, the defendant pled guilty to Sex Abuse in the Second Degree, a class "A" misdemeanor, and was promised a sentence of six years probation.
Prior to sentencing, the defendant was indicted for, and pled guilty to, Burglary in the Second Degree. Since a sentence of probation was no longer appropriate, the defendant was sentenced to six months of jail on the Sex Abuse conviction. That sentence ran concurrently to the sentence of 2 - 4 years of incarceration the defendant received for the Burglary conviction.
This matter has come before the court for a risk level assessment pursuant to Correction Law §§ 168-n (1), (2) and (3).
The court has received from the Board of Examiners and the District Attorney recommendations as to a Level of Notification. The defendant and his counsel have been provided with a copy thereof. The defendant has submitted a response which includes a recommendation on his behalf.
On June 10, 2016, a SORA hearing was held. The defendant was present with counsel. Both sides submitted evidence and took part in oral argument. After the hearing each side submitted additional materials.
After considering all of the evidence, submissions, and arguments, the defendant is adjudged to be a Risk Level 2 with no special designation.
This decision contains the court's findings of fact and rulings of law.
SPECIAL DESIGNATION
Neither the Board nor the People suggest that the defendant should receive a special designation, and the defendant concurs. Therefore the defendant shall not receive a special designation.
PRESUMPTIVE RISK LEVEL
The Board and People contend that the defendant is a Presumptive Risk Level 3 and is therefore a high risk to re-offend.
The Board assessed the defendant with 155 points as follows:
25 points for Sexual Contact with victim (RF 2);
20 points for Duration of Offense conduct with victim (RF 4);
30 points for Age of victim, 10 or less (RF 5);
20 points for Victim incapacity or physical helplessness (RF 6);
30 points for Number and nature of prior crimes -violent felony)(RF 9);
10 points for Recency of Prior Felony (RF 10);
15 points for Drug or alcohol abuse (RF 11)
5 points for Release with supervision (RF 14).
The People assessed the defendant with 130 points, as follows:
25 points for Sexual Contact with victim (RF 2);
20 points for Duration of Offense conduct with victim (RF 4);
20 points for Age of victim, 11 -16 (RF 5);
30 points for Number and nature of prior crimes -violent felony (RF 9);
10 points for Recency of Prior Felony (RF10);
15 points for Drug or alcohol abuse (RF 11)
10 points for not accepting responsibility (RF 14).
The People withdrew their request for the assessment of points under Risk Factor 15.
The defendant contends that he is a Presumptive Risk Level 1 and therefore a low risk to re-offend.
The defendant contends that he should be assessed with 65 points as follows:
20 points for the Age of the Victim (RF 5);
30 points for Number and nature of prior crimes (RF 9);
15 points for Drug and alcohol use (RF 11).
The Court is not bound by the presumptive risk level assessments submitted by the parties. Therefore, the defendant is properly assessed with 105 points as follows:
10 points under Risk Factor 2;
20 points under Risk Factor 5;
20 points under Risk Factor 6;
30 points under Risk Factor 9;
15 points under Risk Factor 11; and
10 points under Risk Factor 12.
The defendant is therefore a presumptive Risk Level 2.
Risk Factor 2
While Grand Jury minutes constitute reliable hearsay, the People have not proven by clear and convincing evidence that the defendant had intercourse with his daughter. The defendant's production of evidence as to possible recantations by the complainant is not in and of itself persuasive that the intercourse did not take place. Each of the recantations can be explained by the fact that most people do not like to speak about sexual incidents. This has been shown to be especially true of children abused by those they love and/or trust. Indeed, all courts have recognized the validity of child sexual abuse accommodation syndrome and the different factors prevalent among child victims which explain why they do not always report or speak about being sexually abused. But, in giving the benefit of the doubt to the defendant, the "negative" proof is enough to cast some doubt on the reliability of the grand jury testimony, especially where that testimony is sparse with regard to particular specific details about the intercourse which would enhance the child's reliability.
There is clear and convincing evidence however that the defendant had sexual conduct with the child victim underneath her clothing. In this regard, the victim's grand jury testimony is reliable and contains sufficient detail as to how the defendant sexually abused her by placing his hand on her vagina underneath her underwear while she was sleeping. The defendant's "negative" proof does not pertain to the touching of the victim by the defendant; if anything, it casts a shadow of doubt only upon the allegation of sexual intercourse. Defendant's argument that only five points should be assessed in this category for defendant "allegedly" touching his daughter's vagina is without merit. The defendant admitted in his plea that he had subjected a child less than fourteen years old to sexual contact by touching the her vagina. "Facts previously proven at trial or elicited at the time of entry of plea of guilty shall be deemed established by clear and convincing evidence" (People v Mingo, 12 NY3d 563 [2009]; People v Wyatt, 89 AD3d 112 [2d Dept 2011], lv denied 18 NY3d 803 [2011]; Correction Law 168-n[3]), so there is nothing about the defendant's conduct in this regard which can be described as "allegedly".
The defendant is assessed 10 points.
Risk Factor 5
There is clear and convincing evidence, and the defendant does not contest, that his victim was under the age of 16 at the time he sexually abused her.
The defendant is assessed with 20 points.
Risk Factor 6
There is clear and convincing evidence, contained in the grand jury testimony of the child victim, and the case summary, that the defendant sexually abused the child by touching her vagina while she was sleeping. A victim who is asleep when the abuse occurs is "physically helplessness". Under Penal Law 130.00(7), "physically helpless" means that a "a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act." This includes a person "who was asleep at the beginning of the incident" (People v Wells, 2016 NY Slip Op 02978 [2d Dept 2016], citing People v Acevedo, 124 AD3d 500 [2015]; People v Richardson, 101 AD3d 837, 838 [2012]; People v Duff, 96 AD3d 1031 [2012]; People v Howell, 82 AD3d 857 [2011]; People v Caban, 61 AD3d 834, 835 [2009]; People v Harris, 46 AD3d 1445, 1446 [2007]).
While neither the Board nor the People requested that the defendant be assessed points under this risk factor, the defendant had notice of this evidence since it was spelled out clearly in both the case summary and the grand jury minutes, both of which were provided to the defendant prior to the hearing.
The defendant is assessed 20 points.
Risk Factor 9
There is clear and convincing evidence, and the defendant does not contest, that he has a conviction for a prior violent felony. In fact, the defendant was previously convicted of Robbery and Burglary for an incident where he and an accomplice invaded a home at gunpoint and then burglarized it.
The defendant is assessed 30 points.
Risk Factor 11
There is clear and convincing evidence, and the defendant does not contest, that he has used a variety of drugs since he was 16 years old, has been in substance abuse programs, is presently in a substance abuse programs, and has at least two felony convictions relating to the sale, or attempted sale, of narcotics.
The defendant is assessed 15 points.
Risk Factor 12
There is clear and convincing evidence that the defendant has not accepted responsibility for sexually abusing his daughter.
"An offender who does not accept responsibility for his [or her] conduct or minimizes what occurred is a poor prospect for rehabilitation. Such acknowledgment is critical, since an offender's ability to identify and modify the thoughts and behaviors that are proximal to his [or her] sexual misconduct is often a prerequisite to stopping that misconduct" (SORA Guidelines, at 15).
The defendant denied his guilt to the Probation Department. The defendant told probation that his daughter made up the allegations because he disciplined her and that he accepted the plea deal on his attorney's advice. Thus, although the defendant was not a stranger to the criminal justice system (as evidenced by his previous felony convictions), and he knew enough to describe the People's case as "weak", rather than accept responsibility, he chose to blame his daughter and his lawyer for his plea. The probation report, wherein the defendant claimed that he was actually innocent of the crime, provides clear and convincing evidence that the defendant has not accepted responsibility for his actions (People v Urbanski, 74 AD3d 1882 [4th Dept 2010], lv denied 15 NY3d 707 [2010]; People v Mosley, 106 AD3d 1067 [2d Dept 2013], lv denied 22 NY3d 854 [2013]; People v Hatcher, 132 AD3d 407 [1st Dept 2015], lv denied 26 NY3d 915 [2016]). An additional failure to accept responsibility is reflected in the defendant's statement to probation that he only took the plea due his record and fear of losing at trial (People v Miller, 77 AD3d 1386 [4th Dept 2010], lv denied 16 NY3d 701 [2011]; People v Ferrer, 69 AD3d 513 [1st Dept 2010], lv denied 14 NY3d 709 [2010]).
Subsequently, the defendant made a motion to withdraw his guilty plea, claiming that his plea was involuntary due to the way the People falsely characterized a conversation that he had with an ACS worker. Once again, rather than accepting responsibility, the defendant affirmatively blamed someone else - the Assistant District Attorney - for his plea. The motion to withdraw his guilty plea establishes, by clear and convincing evidence, that the defendant has not accepted responsibility for his crime. It also corroborates that his claim of innocence to the Probation Department was not an aberration. The defendant's arguments that the court should ignore these earlier denials of responsibility because case workers now say that he is accepting responsibility is unpersuasive. These denial "statements are in direct contradiction to the statements in defendant's plea allocution, wherein defendant expressly acknowledged his guilt, and the contradictory statements, considered together, do not reflect a genuine acceptance of responsibility' as required by the risk assessment guidelines developed by the Board [of Examiners of Sex Offenders]" (People v Noriega, 26 AD3d 767 [4th Dept 2006], lv denied 6 NY3d 713 [2006], [internal citations omitted]; People v Reede,113 AD3d 663 [2d Dept 2014], lv denied 22 NY3d 865 [2014]).
DEPARTURE REQUESTS
Neither the Board or the People requested an upward departure.
The defendant requests that the court grant a downward departure to Risk Level 1 or 2 should the court find that the defendant is a presumptive risk level 3.
DOWNWARD DEPARTURE
A defendant seeking a downward departure from the presumptive risk level under the Sex Offender Registration Act (SORA) Guidelines has the initial burden of (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of re-offense 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, and (2) establishing the facts in support of its existence by a preponderance of the evidence (McKinney's Correction Law § 168 et seq.; see, People v Gillotti, 23 NY3d 841[2014]; People v Torres, 124 AD3d 744 [2d Dept 2015]).
The defendant requests a downward departure based upon the totality of the following factors: 1. The defendant's performance in sex offender treatment; 2. The defendant's score on the Static-99; 3. The defendant's excellent prison record, including programs he completed; 3. The defendant's stable situation and full-time employment; 4. The Brady issues in the underlying case which render otherwise reliable hearsay unreliable as highlighted by the dismissal of the most serious charges against the defendant.
"Under the Sex Offender Registration Act (hereinafter SORA), a court must follow three analytical steps to determine whether to downwardly depart from the presumptive risk level.
First, the court must decide whether the mitigating circumstances alleged by the defendant are, as a matter of law, of a kind or to a degree not adequately taken into account by the SORA guidelines ...
Second, the court must decide whether the defendant has adduced sufficient evidence to meet his or her burden of proof in establishing that the alleged mitigating circumstances actually exist ... The defendant must prove the facts supporting a downward departure by a preponderance of the evidence ...
And third, if the defendant surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure'" (People v Houston, 122 AD3d 915 [2d Dept 2014], lv denied 24 NY3d 917 [2015]; [internal citations omitted]).
The defendant's request for a downward departure is denied for the following reasons:
1. The defendant has not proven by a preponderance of the evidence that his participation in sex offender treatment is exceptional.
In support of his application for a downward departure, the defendant submitted numerous records including five monthly evaluations from the treatment program he attended in prison. The months submitted were for September, October, November and December of 2014, and November of 2015. There is no explanation provided for the gap in the records produced.
The evaluations indicate that the defendant received high marks for completing his homework, displaying appropriate group behavior, being supportive of staff and peers, and other similar categories.
There are two categories which relate directly to offenses committed by an inmate- "Demonstrates acceptance of responsibility for sexual offending behavior" and "Demonstrates personal insight into sexual offending behavior".
In each of these categories, in all of the records submitted, the defendant never received the highest mark indicating that he "Demonstrates behavior consistently and independently". Rather, the defendant received a mark which indicated that he "Demonstrates behavior occasionally with prompting". Thus, in the only two categories which reflect directly on the sexually motivated criminal behavior, the defendant failed to show insight or accept responsibility independently and without prompting.
By scoring the categories, the participants were rated as "Highly Motivated", "Motivated", or Needs Improvement". In the first four evaluations, the defendant was rated as "Motivated." Only in the November 2015 evaluation was the defendant rated as "Highly Motivated." And that was not because he changed his attitude or performance with regard to the two important categories, but rather because he received a higher score for his "Level of understanding of didactic material"; he showed no change in the categories directly relating to his criminal behavior.
"Although a response to treatment may qualify as a ground for a downward departure where the response is exceptional (see SORA Guidelines at 17; People v Washington, 84 AD3d 910 [2d Dept 2011]," here, "the defendant has failed to establish facts in support of that ground by a preponderance of the evidence ... that his response to treatment was exceptional' ..." (People v Santiago, 137 AD3d 762 [2d Dept 2016] [internal citations omitted]).
2. The defendant has not proven by a preponderance of the evidence that the Static-99 and the referenced studies constitute a mitigating factor not taken into account by the guidelines or which warrant a downward departure.
The Static-99 is not a mitigating factor not taken into account by the guidelines. It is a different assessment tool which considers different factors than those considered in the RAI. It is a statistics based tool which provides offenders with a numerical score which is then used to place the offender into a category which reflects the percentage of previous sex offenders who have re-offended.
The Static-99 differs from the RAI in at least one significant detail. The Static-99 attempts to predict the probability of re-offense just as the RAI does, but the Static-99 does not take into account the amount of damage a particular sex offender may cause should he re-offend. This is a significant deviation from the intent of the SORA laws which created a Board to "develop guidelines and procedures to assess the risk of re-offense by a sex offender and the threat posed to public safety" (SORA Guidelines Commentary). Using the Static-99 ranking without regard to the categories set up for a re-offense determination under the SORA Guidelines would result in replacing the RAI with the Static-99 or other studies of the party's choice. "[U]tilization of the risk assessment instrument will generally result in the proper classification in most cases, so that the departure will be the exception, not the rule" (People v Colavito, 73 AD3d 1004 [2d Dept 2010], lv denied 15 NY3d 705 [2010])(internal citations omitted).
The SORA set up a Board of Examiners and charged them with assessing the risk of re-offense. The Board promulgated the RAI. The Static-99 has been in existence for several years and is certainly known to the Board of Examiners. Yet they have declined to make it the test or instrument for determining the risk of re-offense as is their purview. "In imposing civil restrictions on liberty based on predictions of future dangerousness, governments have considerable latitude that does not necessarily depend on the research conducted by the psychiatric community'" (People v Ferrer, 69 AD3d 513 [1st Dept 2010] lv denied 14 NY3d 709 [2010], citing Jones v United States, 463 US 354 [1983]).
Since both the Static-99 and the RAI are used for the exact same purpose - predicting the probability that the offender will re-offend, advocating for the court to use the Static-99 when it contrasts with the RAI as a mitigating factor is nothing more than an attempt to have the court substitute a different, more favorable method to assess the defendant's risk to re-offend than the RAI. This is clearly against the intent of the Legislature and the Court declines to do so (see, People v Houston, 39 Misc 3d 1202(A) [Sup Ct Kings County 2013], affirmed 122 AD3d 915 [2d Dept 2014], lv denied 24 NY3d 917 [2015]).
3. The defendant has not proven by a preponderance of the evidence that an excellent prison record is a mitigating factor.
The defendant's excellent disciplinary record while incarcerated is not a mitigating factor since it is adequately taken into account by the guidelines (People v Torres, 124 AD3d 744 [2d Dept 2015], lv denied 25 NY3d 906 [2015]; People v King, 72 AD3d 1363 [3d Dept 2010]).
4. The defendant has not proven by a preponderance of the evidence that a stable living environment and a full-time job constitute a mitigating factor for a downward departure.
The defendant stable living environment is not a mitigating factor since it is adequately taken into account under the guidelines (People v Cabrera, 91 AD3d 479 [1st Dept 2012], lv denied 19 NY3d 801[2012]; People v Santiago, supra.; SORA Guidelines 17-18). That defendant has a full-time job is also not a mitigating factor since he had a full-time job a the time of the commission of the offense (Cabrera, supra).
None of the factors identified by the defendant, either singly or in combination with each other, showed that the presumptive risk level overassessed the risk of danger of re-offense (People v Anderson, 137 AD3d 988 [2d Dept 2016][internal citations omitted]; People v Wyatt, 89 AD3d 112 [2d Dept 2011] lv denied 18 NY3d 803 [2012]). Even if the factors have been proven the downward departure would not be granted as a matter of discretion since the risk level does not overassess the defendant's risk to re-offend.
UPWARD DEPARTURE
The assessment of the defendant has been done very conservatively due to the facts and circumstances peculiar to this case. For instance, although reliable evidence exists that:
• the defendant engaged in sexual intercourse with his daughter (Grand Jury minutes, Case Summary);• that the initial abuse commenced within three years of the defendant's May, 2007 release from prison (Case Summary, Criminal History), thus qualifying as a recent felony under SORA when prison time is tolled (SORA Guidelines 10; People v James, 99 AD3d 775 [2d Dept 2012], lv denied 21 NY3d 908 [2013]; People v Marrerro, 52 AD3d 797 [2d Dept 2008]; People v Dunn, 82 AD3d 856 [2d Dept 2011], lv denied 17 NY3d 704 [2011]), the defendant was not assessed points for any of these factors because these factors were not undeniably "clear and convincing". There was a determination made by the court giving the benefit of the doubt to the defendant and this determination resulted in the proper risk level assessment. However, this was without regard to the defendant's conviction for a serious felony which occurred shortly after his guilty plea. The defendant is properly assessed as a Risk Level 2, that is, a moderate risk to re-offend. Defendant's argument that the defendant is properly assessed as a Risk Level 1 is unpersuasive. If the defendant was found to be a Risk Level 1, the court would have upwardly departed from that presumptive risk level to a Risk Level 2. "[T]he 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 NY3d at 568; see People v Pettigrew, 14 NY3d 406 [2010]). Risk Level 1 is not the appropriate designation and based upon the defendant's conviction for Burglary while he was awaiting sentence on the underlying sex offense, an upward departure would be warranted to Risk Level 2 since this constitutes an aggravating factor not taken into account on the RAI. It is a concurrent or subsequent offense which "may be the basis for an upward departure if it is indicative that the offender poses an increased risk to public safety" (SORA Guidelines, Factor 9). Burglarizing a home is a serious offense and poses a danger to the community, especially when this is the defendant's second burglary conviction. While a Risk Level 1 finding - would under-assess the defendant's likelihood to re-offend, an upward departure from Risk Level 2 to Risk Level 3, while legally justified, would over-assess the likelihood of re-offense by the defendant. Therefore, as a matter of discretion, the upward departure will not be imposed.
• the incidents of sexual intercourse occurred on more than one occasion separated by more than 24 hours (Grand Jury minutes);
• that the victim was nine years old when the sexual abuse began in 2007(Case Summary); and
Accordingly, it is hereby
ORDERED, that the defendant is designated a Risk Level 2; and it is further
ORDERED, that there is no special designation.
This constitutes the Decision and Order of the Court. Dated: July 22, 2016 Staten Island, New York MARIO F. MATTEI ACTING JUSTICE OF THE SUPREME COURT