Opinion
1997-0016.
Decided April 27, 2011.
William G. Gabor, Esq., District Attorney of Madison County (Elizabeth S. Healy, Esq., of counsel), for the People.
Randi Juda Bianco, Esq., for the Defendant.
This is a proceeding brought under Article 6-C of the Correction Law for the purpose of determining the appropriate risk level of a convicted sex offender. In 1997, the defendant, then 22 years of age, was convicted upon a jury verdict finding him guilty of Aggravated Sexual Abuse, 2nd degree (Penal Law § 130.67[c] — a class C violent felony) and Sexual Abuse, 1st degree (Penal Law § 130.65 — a class D violent felony). The charges related to a 5-year old female victim. The jury acquitted the defendant of the three remaining counts, two counts of Course of Sexual Conduct Against a Child, 2nd degree, and one count of Sexual Abuse, 1st degree. One of the Course of Sexual Conduct charges related to the same victim. The other charges related to a different, and slightly younger, female. The 5-year old girl was a student at a nursery school where the defendant was working and where he was commonly known to the students as "Mr. Tim". The jury found that the defendant had inserted his finger in the child's vagina and caused her to suffer a physical injury. On July 11, 1997 the defendant was sentenced to an indeterminate period of incarceration of 7 — 14 years.
Now 36 years old, the defendant has served the maximum term of that sentence and is scheduled to be released from prison on May 8, 2011. The Board of Examiners of Sex Offenders ("the Board") has provided the court with its Case Summary and its Risk Assessment Instrument ("RAI") in which it has identified what it believes to be the relevant factors in this assessment and arrived at a score of 125 points, placing this defendant presumptively in the range of a Level 3 or "high risk" sex offender. Specifically, relevant factors and applicable points as found by the Board are as follows:
FactorPoints
No. 1 — Physical injury inflicted15
No. 2 — Aggravated sexual abuse25
No. 5 — Age of the victim (under 10)30
No. 7 — Relationship (professional)20
No. 9 — Prior conviction (non-sexual crime
and not a felony)5
No. 12 — Non-acceptance of responsibility and
expulsion from sex offender treatment15
No. 14 — No supervision following release 15
Total Points125
The Board does not recommend any departure from the presumptive risk level. Additionally, due to the nature of the crimes for which the defendant has been convicted, he would be a "sexually violent offender". The People are in agreement with the Board's assessment and ask that this court find the defendant to be a Level 3 sexually violent offender.
The defendant argues that he was improperly assessed points under Factors No. 12 and 14 and that his score should be reduced by thirty points to 95 which would support a Level 2 ("moderate risk") determination, and that a further downward departure to Level 1 ("low risk") would be warranted.
First, the defendant argues that the RAI is flawed in that it is not a reliable tool for predicting the risk of reoffense, that its design is based on flawed data and that it is outdated. The court reads Correction Law § 168-l as the Legislature entrusting to the Board the responsibility for formulating guidelines for the assessment of the risk of reoffense. In compliance with that directive, the Board designed the RAI. The Board, in the Commentaries to its Sex Offender Guidelines, acknowledges that "an objective instrument, no matter how well designed, will not fully capture the nuances of every case." ( See, Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, 56). Thus, the score and risk level determined in the RAI is presumptive only, and there is allowance for certain "overrides" (none of which are applicable here) and for both upward and downward departures based on aggravating or mitigating circumstances not adequately addressed in the RAI so long as they are supported by clear and convincing evidence in the record. People v. Roe , 47 AD3d 1156 (3d Dept 2008), lv. den. 10 NY3d 707 (2008); People v. Douglas ,18 AD3d 967 (3d Dept 2005), lv. den. 5 NY3d 710 (2005).
This court entertains no doubt that the Board is keenly aware of the various criticisms leveled at the RAI over the years and the call from some quarters for it to be replaced or supplemented by other tools. The Board is free to modify the RAI if and when it sees fit to do so. Until that time, the RAI remains the principal tool, but not the exclusive tool, available to the courts for assessing a sex offender's risk of reoffense.
The defendant's argument with respect to the assessment of points under Factors 12 and 14 is that he has steadfastly maintained his innocence since the date of his arrest and that he has paid a dear price for having done so. He has been expelled from sex offender treatment while in prison because his continued failure to "accept responsibility" for his acts is in conflict with the goals of sex offender treatment. Additionally, his refusal to accept responsibility has resulted in the denial of all of his parole applications. Hence, having served the maximum period of his incarceration, he will soon be released without parole supervision. The defendant's argument, then, is that he is being punished for maintaining his innocence and that this is being unfairly scored multiple times to his detriment.
The defendant asks that the court consider his reasons for maintaining his innocence over the past fourteen years, arguing that this is a factor not adequately addressed in the Board's guidelines. In People v. Kearns , 68 AD3d 1713 (4th Dept 2009), it was noted that the RAI makes no inquiry as to the reasons underlying a sex offender's refusal to accept responsibility for his actions. In Kearns, the defendant claimed to be acting on the advice of counsel in that he had an appeal pending and was concerned that, if the appeal was successful and a new trial ordered, his acceptance of responsibility might be admissible against him. Here, the defendant avers that he continued to maintain his innocence based on the advice of counsel and so as not to betray his own sense of principle.
The defendant's conviction was unanimously affirmed on appeal in June, 2000. The record is silent as to any other appeals or proceedings thereafter. Thus, at no time after June, 2000, would this be considered a plausible explanation for refusing to acknowledge responsibility. People v. Palladino , 46 AD3d 864 (2d Dept 2007), lv. denied 10 NY3d 704 (2008). Moreover, an ongoing claim of innocence notwithstanding, a failure to accept responsibility for his actions is still a risk factor that is properly scored under Factor No. 12 and, if that results in the defendant being expelled from sex offender treatment, then that too is properly separately scored. People v. Matthie , 34 AD3d 987 (3d Dept 2006), lv. denied 8 NY3d 847 (2007); People v. Walker , 15 AD3d 692 (3d Dept 2005). In other words, a convicted sex offender who continues to maintain his innocence has not genuinely accepted responsibility for his actions and, even if he were to admit guilt solely for the purpose of getting sex offender treatment, that lack of sincerity would be transparent and would not preclude the assessment of points. People v. Fortin , 29 AD3d 765 (2d Dept 2006), lv. denied 7 NY3d 712 (2006); People v. Powell, 27 Misc 3d 1212(A), 2010 WL 163352 (Sup Ct, NY County 2010).
People v. Johnston, 273 AD2d 514 (3d Dept 2000).
Due to his continued claim of innocence, the defendant has been repeatedly denied parole and has now served the maximum term of his incarceration. Thus, he is being released without any supervision. Defendant argues that this lack of supervision is not his fault and that he would be willing to submit to supervision. Contrary to defendant's argument, the points assessed under this factor are not a punishment for him having continued to maintain his innocence. Instead, they are properly assessed as a measure of the defendant's risk to reoffend, and his willingness to accept post-release supervision is irrelevant. People v. Diaz , 61 AD3d 465 (1st Dept 2009), lv. denied 13 NY3d 708 (2009); People v. Lewis , 37 AD3d 689 (2d Dept 2007), lv. denied 8 NY3d 814 (2007).
Therefore, the court rejects defendant's arguments that the Board improperly assessed points on the RAI under risk factors 12 and 14. His risk score is 125 points, placing him well within the range of a presumptive Level 3 ("high risk") sex offender.
The next portion of the inquiry is whether the record contains clear and convincing evidence of any mitigating factor(s) not considered, or not adequately considered, in the guidelines that would warrant a downward departure from the presumptive risk level.
Defendant has submitted documentary evidence that, during his incarceration, he has earned a bachelor's degree and that he has been an exemplary prisoner. A sex offender's conduct while confined is the subject of risk factor 13. Points can be assessed for unsatisfactory conduct, but no basis for adding points for this was found. It has been held that conduct while incarcerated is, to the extent relevant, properly considered under the guidelines, and that proof of good conduct will not ordinarily warrant a downward departure. People v. Nichols , 80 AD3d 1013 (3d Dept 2011); People v. King , 72 AD3d 1363 (3d Dept 2010). Proof of a sex offender's good conduct while incarcerated is not necessarily indicative that such good behavior will continue once he is released to the community. People v. Parker , 62 AD3d 1195 (3d Dept 2009), lv. denied 13 NY3d 704 (2009); People v. Warren , 42 AD3d 593 (3d Dept 2007), lv. denied 9 NY3d 810 (2007); People v. Jenkins, 79 AD3d 1294 (3d Dept 2010).
Defendant has further submitted proof that during his incarceration he has "embraced Christianity" and has a deeper appreciation of and insight into good moral behavior. Given the number of clergymen who have been exposed as pedophiles over the past decade or more, the court cannot find that there is necessarily any connection between this and a diminished risk of reoffense.
This is all the more so where, as here, the defendant will not be subject to supervision.
The defendant has submitted further proof that he will be welcomed back into his community by his family and several neighbors and that he has a job waiting for him upon his release. He will be receiving counseling to help him with the transition from incarceration to "normal" life, though this has no component for sex offender treatment. All of these matters were considered under Factor No. 15 ("Living / employment situation") and the Board found no basis to add points here.
Finally, the defendant has submitted to the court for its consideration the results of two evaluations performed by two licensed psychologists, each concluding that the defendant poses a low risk to reoffend. One such evaluation was performed in 2004 as part of the defendant's application for parole release. There are additional documents from that psychologist but it does not appear that any further evaluation was made subsequent to 2004. This psychologist subscribes to the notion that there is no "correlation between denial (of wrongdoing) and recidivism", attributing this, at least in part, "to the fact that a meaningful proportion of these deniers are men who are in fact innocent despite a conviction for a sexual offense. Society as a whole and parole boards in particular put their heads in the sand on this issue as if erroneous convictions never occur (even if they occur relatively rarely)."
See letter from Damian S. Vallelonga, Ph.D. to Richard Luciani, MSW, dated February 27, 2006, pp. 1 — 2.
This psychologist's theory that there is no link between a failure to accept responsibility and risk of reoffense is directly at odds with the guidelines developed by the Board. Nothing in the record indicates whether this contrary opinion has found general or even substantial support in the profession. It appears that this psychologist is at least open to the defendant's claim of innocence despite the fact that the defendant was found guilty by a jury (which did not hesitate to acquit him on three of the five counts contained in the indictment) and that his conviction was unanimously affirmed on appeal. To what extent, if any, this psychologist's conclusions were influenced by a belief in the defendant's innocence is unclear, but it seems from his "heads in the sand" reference that he has an agenda that he may be advancing in his report. In this court's opinion, this renders his report suspect and of dubious probative value.
Of greater worth is the report of a second psychologist who evaluated the defendant in 2004 and again earlier this year in preparation for his risk assessment hearing. This psychologist indicates that he is well aware of the defendant's claim of innocence "but for the purpose of this evaluation I am assuming that the jury verdict is correct and base my evaluation in light of the jury's verdict." A battery of tests, including the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and the Millon Clinical Multiaxial Inventory-III (MCMI-III), were performed and the psychologist reviewed the results of a polygraph exam that was performed in June, 2008 (apparently for the purpose of persuading the parole board that there was a basis to believe that the defendant is innocent), a summary of his 2004 evaluation of the defendant and the report of the first psychologist.
Of course, the results of a polygraph examination are inadmissible at a sex offender risk assessment ( People v. Jackson , 70 AD3d 1385 [4th Dept 2010], lv. denied 14 NY3d 704 [2010]), and the issue of defendant's guilt has been finally and conclusively established and is not subject to re-examination here.
This psychologist's conclusion is that the defendant poses no worse than a moderate risk to reoffend and that he is more likely a low risk for recidivism. The more detailed evaluation and the variety of tests performed support the notion that this defendant "is not a psychopath" and has no preoccupation with sexual matters or any unusual or disturbing sexual appetites. This psychologist finds support for his conclusion from, among other things, the report of the first psychologist, the defendant's accomplishments and good behavior in prison, and the support he will receive from his family and friends upon his release from incarceration.
The question, then, is whether these psychologists' opinions are of such weight as to constitute clear and convincing evidence that would warrant a downward departure from the presumptive risk assessment. People v. Kearns, supra. Without intending to give undue weight to the facts of the underlying sex offense, the court cannot ignore the particularly reprehensible nature of the crime itself, the defendant's digital penetration of a 5-year old's vagina, the resulting injuries sustained by this child (blood in her underwear, abrasions in the area of her anus), compounded by the realization that this child of tender years was entrusted by her presumably loving parents to the nursery school where the defendant was employed and where the parents surely felt that she would be safe from harm. The court is further troubled by the defendant's refusal to accept responsibility for his actions due to his claim of innocence. The court must refuse the defendant's invitation to view this as some badge of honor on his part and must give sober and due consideration to the realization that this is a strong indicator of the defendant's risk to reoffend.
Lest there be any doubt, the court expressly rejects the implication that any possible conflict the defendant may have had in his youth regarding his gender orientation could have a possible link to a risk of recidivism. By the same token, some vague recollection by someone that years ago the defendant had a habit of "standing too close" to female members of a high school cross country team is utterly without probative value. Likewise, although there is some reference in the Board's Case Summary to the possibility of other victims, the Board expressly acknowledged that the defendant had been acquitted on the other charges and clearly did not assess any points under Factor No. 3 (number of victims), so not even the Board put much stock in that and this court gives that no weight whatever.
While the court can appreciate to some degree the defendant's resolve based on his sense of principle and the significant accomplishments he has achieved during his incarceration, it cannot, as his counsel advocates, effectively entertain any doubt as to his guilt and lower his risk assessment so as to "let him have a life." That is not the purpose of the risk assessment. Its purpose is neither to punish a sex offender nor to assist him in his post-release life but rather to promote public safety by giving due and adequate warning of what appears to be his risk of reoffending. People v. Windham , 10 NY3d 801 (2008).
Taking all of these factors into consideration, the court finds, based primarily on the evaluation of the defendant performed by the second psychologist, that the defendant poses a moderate risk of reoffending and that he is a sexually violent offender who is properly classified as a Level 2 ("moderate risk") sex offender.
SO ADJUDGED AND DECREED.