Opinion
Ind. No. 52/2018
12-14-2023
The People of the State of New York v. Michael Gordon, Defendant.
The People are represented by: Honorable Michael E. McMahon District Attorney, Richmond County by: Assistant District Attorney Rhiannon LaTour The Defendant - Michael Gordon is represented by: APPELLATE ADVOCATES by: Marissa Reap, Esq.
The People are represented by:
Honorable Michael E. McMahon
District Attorney, Richmond County
by: Assistant District Attorney Rhiannon LaTour
The Defendant - Michael Gordon is represented by:
APPELLATE ADVOCATES
by: Marissa Reap, Esq.
Mario F. Mattei, J.
Honorable Mario F. Mattei, Justice.
The matter has come before the court pursuant to Correction Law § 168(n) for a determination of the defendant's Risk Level. The Board and the People have submitted written materials with their recommendations as to the appropriate Special Designation and Risk Level. The defendant has also submitted written materials. A Risk Level Assessment hearing was held on October 25, 2023.
FACTS
On February 3, 2018, five young girls were attending a birthday party for a friend and had gathered in the hallway/lounge area of an apartment building. The oldest girl was twelve years old. The defendant had been partying in the apartment of an acquaintance and made his way to the elevator area. He asked the young girls to come onto the elevator with him. They refused. When they did so he grabbed one of the girls and tried to drag her onto the elevator. She was eight years old. Another girl tripped the defendant and the eight-year old managed to escape. The defendant then focused his attention on an eleven-year old girl. He grabbed her by the blouse but she escaped his grasp. The defendant recovered and grabbed her around the waist and pulled her into a stairwell. While in the stairwell a female Good Samaritan came and yelled at the defendant. He was distracted and the eleven year old was able to slip out of his grasp. She escaped and ran down the stairs and hid. The defendant followed her and passed her hiding spot. He exited the building and could be seen looking for her outside.
The children indicated that they did not know the defendant, and the defendant admitted that he did not know any of them.
The defendant testified at his trial. He claimed that his actions were spurred by an excessive amount of drugs and alcohol combined with a lack of sleep. He claimed that he was trying to "protect" the children although he could not identify any actual harm from which they were endangered. His memory and reasoning about the actual incident was spotty. The defendant blamed this on his drug/alcohol intake and lack of sleep, but his memory and recollection of the events and his actions preceding and after the incident did not suffer from the same ailment.
The defendant was convicted after a non-jury trial before this court of Attempted Kidnapping in the Second Degree (Penal Law § 110/135.20), Unlawful Imprisonment in the Second Degree (Penal Law § 135.05), and five counts of Endangering the Welfare of a Child (Penal Law § 260.10 [1]). The defendant was sentenced to a determinate sentence of six years of imprisonment followed by five years of post-release supervision.
The defendant had been convicted of several crimes before the instant offense. He was convicted of two felonies: Criminal Possession of a Loaded Firearm in the Third Degree (Penal Law § 265.02 [4]), 1990), and Criminal Sale of a Controlled Substance in the Third Degree (Penal Law 220.39 [1], 1998). Many of his numerous misdemeanor convictions related to the possession of narcotics, and one involving driving while under the influence of alcohol.
RISK ASSESSMENT INSTRUMENT
The Board of Examiners issued a Risk Assessment Instrument contending that the defendant is a Risk Level 3 with no special designation. The Board assessed the defendant with a total of 125 points as follows:
10 points for Risk Factor 1 (Use of Violence);
20 points for Risk Factor 3 (Number of victims 2);
30 points for Risk Factor 5 (Age of victim, 10 or less);
20 points for Risk Factor 7 (Relationship with victim - stranger)
30 points for Risk Factor 9 (Number and nature of prior crimes - prior)
15 points for Risk Factor 11 (Drug or alcohol abuse - history of abuse)
The People also contend that the defendant is a Risk Level 3 with no special designation. The People assess the defendant with the same points as the Board but contend that the defendant should be assessed with an additional ten points under Risk Factor 12 because the defendant has not accepted responsibility.
The defendant objects to the imposition of points under Risk Factor 12 and also claims that the assessment of 30 points under Risk Factor 9 for his prior violent felony conviction leads to an over-assessment of the defendant's likelihood to re-offend. The defendant requests a downward departure to Level 1 if the court finds that the defendant is a Presumptive Risk Level 3.
The defendant also contends that the SORA statute is unconstitutional as applied to the him because there was no sexual motivation for his crime, and therefore labeling the defendant a "sex offender" is contrary to the intent of the statute.
FINDING
The defendant is a Level 3 Sex Offender with no Special Designation.
DISCUSSION
RISK FACTOR 9
The defendant's contention that the court should not assess points because his previous violent felony conviction is remote is contrary to the law.
"An offender's prior criminal history is significantly related to his likelihood of sexual recidivism, particularly when his past includes violent crimes or sex offenses (Quinsey et al. 1995; McGrath 1991; Quinsey 1990; Romero & Williams 1985; Longo & Groth 1983; Groth, Longo & McFadin 1982)" (Risk Assessment Guidelines and Commentary at B. Specific Guidelines Risk Factor 9). This "risk factor, however, does not take into account the timing of any particular prior violent felony (see Risk Assessment Guidelines and Commentary, at 13-14), because "the passage of time is taken into consideration under risk factor 10" (People v Gulifield, 174 A.D.3d 751 [2d Dept 2019], lv denied 34 N.Y.3d 910 [2020]). "In any event, the recency of an offender's prior felony or sex crime is taken into account in risk factor 10 and, inasmuch as defendant's prior felonies occurred more than three years prior to the instant offense, he was not assessed any points under that risk factor (People v Montanez, 88 A.D.3d 1278 [4th Dept 2011]).
RISK FACTOR 12
Although there are several instances where the defendant has seemingly not accepted responsibility, the People have not proven this factor by clear and convincing evidence. The Court will not assess any points under this risk factor.
DUE PROCESS AS-APPLIED CHALLENGE
The defendant's contention that any SORA finding against him violates his Due Process rights is unpersuasive.
The defendant's main contention is that there was no sexual motivation to his crime and therefore applying SORA to him is inconsistent with the goals of the statute. The hearing and decision in this case was conducted while the appeal of the case of People v Marcus Brown (203 A.D.3d 1183 [2d Dept 2022]) was under consideration, but not yet decided, by the Court of Appeals. Defense counsel argued that the Brown case should apply. At the time of the hearing the Court was of the opinion that the facts of Brown were not applicable to the present case. Brown has since been decided (People v Brown, - N.Y.3d -, 2023 NY LEXIS 1895, 2023 NY Slip Op 05973, 2023 WL 8039655). The Court of Appeals found that the application of SORA to Mr. Brown was indeed a violation of his Constitutional rights. The Brown opinion however is not a basis to deviate from this court's finding.
At the SORA hearing this court opined that the facts in this case are different than those in Brown, a significant factor since "an as applied challenge calls on the court to consider whether a statute can be constitutionally applied to the defendant under the facts of the case" (People v Brown, supra). The defendant's position in Brown makes the difference in that case and the present case apparent.
Brown was convicted of robbing his aunt at gunpoint while a young female relative was present. The presence of the girl, his cousin, resulted in him pleading guilty to Unlawful Imprisonment. In Brown, the defendant challenged his registration and the viability of People v Knox (12 N.Y.3d 60 [2009]) by distinguishing his case from the trio of decisions that encompass Knox. The defendant distinguished Knox from his case by pointing out that "his cousin was not the target of the offense, and his cousin was not abused, abducted, or detained" (Brown, supra).
In Brown, the Court recognized that" [I]t is undisputed that the crime was non-sexual and that the SORA court found that defendant is not a sex offender and poses no sexual threat". That is not the position of this SORA court.
The Court of Appeals found in Brown that there was an "affirmative judicial finding that defendant posed no future risk" by the SORA court and that "[i]t is precisely because there is a factual finding of defendant's lack of risk - a finding which we have no power to disturb - that defendant's as-applied challenge must succeed (Brown, supra). Once again, that is not the finding of this SORA court.
Following this court's "constitutional duties and statutory fact-finding responsibilities" (Brown supra), I am of the opinion that this defendant presents a high risk of reoffending and a future risk to female children.
Like Brown, the facts of this case are very clear; but, unlike Brown, they compel a different result. The facts bear repeating to show how they can be distinguished from Brown.
Most of the incident was captured on a security video which was reviewed by the court both at trial and as part of the People's submission for the SORA hearing. First, the defendant tried to lure someone from a group into an elevator. When that failed he grabbed a child but was tripped by one of her friends. This enabled the first girl to get away. After the defendant got up he grabbed another child and dragged her into the stairwell. She was able to get out of his grasp because a resident intervened. Even at that point he still attempted to grab the child's hair after she wriggled free. He then pursued her down the stairs. These facts are starkly different than those of Brown, where the courts found that the only motivation for the defendant's crimes was to obtain money.
Of course, a sexual motive was not proven at trial. As in most cases, the People were not required to prove motive. The defendant's crime was interfered with and not completed. The defendant's claim that he was trying to "protect the girl" rings hollow and false, and the representation put forth as fact in his moving papers describing the incident on videotape is inaccurate at best. The defendant's SORA description of the video is totally at odds with what someone can plainly see by watching the video and reviewing the testimony offered at the trial from one of the victims and the eyewitness. The People have correctly described the defendant's actions during the incident in their response papers.
The defendant's attempted abductions failed through no lack of effort on his part. By analogy, this defendant represents the reason your parents told you not to talk to strangers when you were a child. He is the person standing next to a car (the elevator) asking a child if they would like some candy. And when that gambit failed to lure a girl into the vehicle (the elevator) that he could use to isolate and transport her to another place, he forcefully grabbed two children. Of course, this begs the question, "What was the defendant going to do with an eleven-year old girl once he forcibly removed her from her friends and a public location?" Play house?
This court is mindful of its duty to uphold and follow the laws of the State of New York and the Constitution of the United States, but neither requires this, or any other court, to leave its common sense outside of the courtroom. The intent of the SORA is clear, and" Knox correctly concluded that where a nonparent defendant who kidnaps or unlawfully imprisons a minor poses a risk of future sexual harm, the Legislature had a legitimate basis for mandating the defendant's registration as a sex offender" (Brown, supra).
The application of SORA to this defendant enhances the legislative purpose of protecting children from "either an actual sexual assault or the likelihood of a sexual assault (People v Knox, 12 N.Y.3d 60 [2009]), which is the result of most non-family child abductions.
SPECIAL DESIGNATION
The Board and the People submit that the defendant should not receive a special designation.
PRESUMPTIVE RISK LEVEL
FINDINGS
RISK FACTOR 1
The People have proven by clear and convincing evidence that the defendant used forcible compulsion in grabbing and holding the children and attempting to separate them from their friends and bring them too a secluded area (the elevator and the stairwell).
The defendant will be assessed with 10 points.
RISK FACTOR 3
The People have proven by clear and convincing evidence that the defendant victimized two children.
The defendant will be assessed 20 points.
RISK FACTOR 5
The People have shown by clear and convincing evidence that at least one of the children was under eleven years old at the time of the crime.
Therefore the defendant will be assessed 30 points.
RISK FACTOR 7
The People have shown by clear and convincing evidence that the children victimized by the defendant were strangers.
The defendant will be assessed 20 points.
RISK FACTOR 9
The People have shown by clear and convincing evidence that the defendant was convicted of a prior violent felony.
The defendant will be assessed 30 points.
RISK FACTOR 11
The People have shown by clear and convincing evidence that the defendant has a history of drug and alcohol abuse.
The defendant will be assessed 15 points.
PRESUMPTIVE RISK LEVEL
The defendant is assessed with 125 points and is therefore a Presumptive Risk Level 3 Sex Offender.
DEPARTURES
The defendant has requested a downward departure from Risk Level 3 to Risk Level 1.
DOWNWARD DEPARTURE REQUEST
A offender seeking a downward departure from the presumptive risk level under the Sex Offender Registration Act (SORA) Guidelines has 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 N.Y.3d 841 [2014]; People v Torres, 124 A.D.3d 744 [2d Dept 2015], lv denied 25 N.Y.3d 906 [2015]).
The offender contends that challenges and mitigating circumstances exist which necessitate a downward departure to Risk Level 1.
The offender's request is denied.
"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 A.D.3d 915 [2d Dept 2014], lv denied 24 N.Y.3d 917 [2015]) [internal citations omitted]) "based upon an examination of all circumstances relevant to the defendant's risk of reoffense and danger to the community" (People v Curry, 158 A.D.3d 52 [2d Dept 2017], lv denied - N.Y.3d -, Slip Op 71046 [May 1, 2018][internal citations omitted]).
The offender has failed to set forth any mitigating factors warranting a downward departure.
The defendant's claim that a downward departure is warranted because he is now able to confront his addiction for the first time is not a valid reason for a departure. While a response to treatment, if exceptional, can constitute a mitigating factor resulting in a downward departure (People v Migliaccio, 90 A.D.3d 879 [2d Dept 2011], the conclusion by the defendant, an interested person in this matter, that future treatment will help him not reoffend has no basis in fact or history. He has not yet been released, so it is still a question and a matter of speculation as to whether or not the defendant will be able to avoid reoffending when he returns to the same community he returned to previously, after attending at least two drug treatment programs, and to which he belonged when he offended in this case (People v Bevel, 81 Misc.3d 127 (A) [App Term 2d Dept 2023]). At this point, his treatment is also not a mitigating factor, which by definition is something not taken into account by the Risk Assessment Instrument, because his history of drug and/or alcohol abuse is taken into account under Risk Factor 11.
The defendant's has not proven by a preponderance of the evidence that the proclamation of family support, which apparently also existed at the time he tried to kidnap the children, is a mitigating factor (People v Saintilus, 169 A.D.3d 838 [2d Dept 2019], lv denied 33 N.Y.3d 907 [2019]; People v Peoples, 189 A.D.3d 1282 [2d Dept 2020], lv denied 36 N.Y.3d 910 [2021]), or that it was not adequately taken into account by the SORA guidelines (People v Jordan, 136 A.D.3d 697 [2d Dept 2016], lv denied 27 N.Y.3d 389 [2016]; People v McCoy, 155 A.D.3d 897 [2d Dept 2017], lv denied 30 N.Y.3d 912 [2018]).
Similarly, the defendant has not proven by a preponderance of the evidence that any continued therapy he receives in the future will be effective and prevent him from reoffending. This is another speculation since the defendant's release from confinement and therapy has not yet occurred.
The fact that he will be supervised by parole is taken into account under Risk Factor 14 and is thus not a mitigating factor.
DISCRETION
Even if the defendant had proven that one of more mitigating circumstances existed, the court would exercise its discretion and not grant a downward departure because of the extreme nature of the defendant's crimes.
"As the Act makes clear, the threat posed by a sex offender depends upon two factors: (I) the offender's likelihood of reoffense and (ii) the harm that would be inflicted if he did reoffend. Some offenders repeatedly reoffend, but the harm they inflict, while not insubstantial, is less grave. Others may pose a lesser likelihood of recidivism, especially if properly supervised, but the harm would be great were they to reoffend. The sex offender whose modus operandi is to rub himself against women in a crowded subway car generally falls into the former category; the child molester into the latter" (Risk Assessment Guidelines and Commentary; A. General Principles [1]).
The defendant actions were clear. He tried to abduct two young girls and was only foiled by interaction of a child tripping him in the first instance and a Good Samaritan in the second. "The mitigating factors he cites are unpersuasive, and were in any event outweighed by the seriousness of the underlying sex crime" (People v Ward, 83 A.D.3d 561 [1st Dept 2011]). Based on all the facts and circumstances of the case, a Risk Level 1 determination would under-assess the likelihood of the defendant's reoffending and the harm he would cause if he did so.
Based upon all of the factors in the case the People have proven that a Risk Level 3 is the appropriate estimation of the defendant's likelihood of reoffense.
CONCLUSION
The defendant is properly assessed with 125 points; a downward departure is not warranted; accordingly, It is hereby ORDERED, that the defendant is designated a Risk Level 3 Sex Offender with no special designation.
This opinion constitutes the decision and order of the court.