Opinion
2009NY092897.
Decided September 29, 2010.
NYS Sex Offender Registry, NYS Division of Criminal Justice Services.
A.D.A. John McConnell, Esq., NY County District Attorney's Office.
Benjamin Kanstroom, Esq., Legal Aide Society.
Defendant, Milton Lesta, on December 21, 2009, was convicted in the above-captioned case upon a plea of guilty of Sexual Misconduct (PL § 130.20) in full satisfaction of the original charge for Rape in the first degree (Penal Law § 130.35). Upon the plea of guilty, defendant was sentenced to a term of six months of imprisonment.
Pursuant to Corrections Law 168-l[6], by documents dated January 15, 2010, the Board of Examiners of Sex Offenders (herein "the Board or Board") recommended that Milton Lesta be assessed 80-points, designating Lesta as a Level II Sex Offender with no basis for downward departure. The Board's assessment was based upon review of defendant's inmate file, which included but was not limited to a pre-sentence investigation, probation clinical examination, prior criminal history, and post offense behavior.
The Board's Case Summary set forth, in pertinent parts, that "Milton Lesta is a 35-year old Sex Offender" who on November 22, 2009 "forcibly raped a 35 year old female considered an acquaintance", that he pushed her "down on a bed, held her down and forcibly raped her." The Case Summary further states that Mr. Lesta has two prior felony convictions and has "admitted to having problems with marijuana addiction during his most recent prison stay."
Defendant and the People contend that a downward departure is warranted in this case, changing defendants status from the recommended Risk level II — Sex Offender to a Risk Level I. Defense counsel and the People argue that the Board's assessment of points under Risk Factor 11 is improper, as the defendant has not used drugs since 2007.
"[A] downward departure is only warranted where there exists mitigating factors not adequately taken into account by the Board's risk assessment guidelines" ( People v. Roe , 47 AD3d 1156 , 1156 [3rd Dept. 2008]; see People v. King , 72 AD3d 1363 , 1365 [3rd Dept 2010]). Moreover, "the question as to whether any mitigating factors exist to warrant such a reduction is within the sound discretion of the court to decide" ( People v. Warren , 42 AD3d 593 , 595, 840 NYS2d 176).
The Board has developed guidelines pursuant to Correction Law § 168-l to assess the risk of a sex offender's likelihood to repeat offense and his threat to public safety. These guidelines set forth a schedule of "risk factors", for which specified numbers of "points" are assessed. As mandated by Correction Law § 168-d and by the Board itself, see, Sex Offender Registration Act Risk Assessment Guidelines and Commentary 4-5 (2006) (herein "Guidelines"), the state must prove facts supporting a risk factor by "clear and convincing evidence" in order for an assessment based on it to be made. "Reliable hearsay" may be considered. Correction Law § 168-d; see also Guidelines 5 ("any other reliable source"). In addition, the Board has recognized that the Guideline point totals will not always capture idiosyncratic factors which warrant risk level determinations higher or lower than presumptively indicated. Hence, the Board has made allowances for "departures" from the presumptive levels 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". (Guidelines 3-5. See generally; People v. Johnson , 11 NY3d 416 , 421).
This Court finds no basis warranting a downward departure. Here, neither defense counsel or the People presented any mitigating factors, in writing or at the hearing, that would warrant a downward departure. Moreover, based upon the defendant's record, hearing and submissions, as well as the Board's recommendations, I find the adduced evidence established facts by clear and convincing evidence, which support the assessment of points for a Risk Level II Sex Offender designation. Accordingly, this Court imposes without further comment the following assessments recommended by the Board and the People, which were not contested by the defendant and are supported by his criminal record, guilty plea, and sentence. ( See; People v. Alemany , 56 AD3d 251 [1st Dept 2008][Judicial findings unnecessary as to uncontested assessments]). These assessments are as follows: twenty-five points under Risk Factor 2 for sexual intercourse, deviate sexual intercourse or aggravated sexual abuse; fifteen-points under Risk Factor 9 for defendant's prior history of non-violent felonies; and fifteen-points under Risk Factor 14 for lack of release supervision, for a total of fifty-five uncontested assessment points.
The following address defense counsel's contested assessment points for Risk Factors 1 and 11:
Risk Factor 1: Use of Violence
The Board recommended that Mr. Lesta be assessed ten-points for the use of forcible compulsion under Risk Factor 1. The Sex Offender Registration Act Risk Assessment Guidelines and Commentary provide under Risk Factor 1 that an offender is to be assessed 10-points if he committed his crime by forcible compulsion, a term which carries the meaning assigned to it in Penal Law § 130.00, see Sex Offender Registration Act Risk Assessment Guidelines and Commentary 8 (2006 ed.) (herein "Guidelines"). Penal Law § 130.00 defines forcible compulsion to include either the compelling of another by use of physical force or by threat, expressed or implied, "which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped. . .". Id.
At the hearing, defense counsel contested the assessment of points under Risk Factor 1. Defendant argued that the record was devoid of proof to support that defendant used forcible compulsion, since he pleaded guilty to the lesser charge of sexual misconduct (PL § 130.20), whose elements require a lack of consent, but does not include forcible compulsion, as in the original charge of Rape in the First degree. (PL § 130.35).
This Court takes note of the recent decision by the Appellate Division, First Department regarding forcible compulsion, which is distinguishable from the case at bar. In People v. Mack, 2010 NY Slip Op 06604, ___ AD3d ___ [App. Div. 1st Dept 2010], the court dismissed an indictment for sexual abuse as insufficient. The Court opined that use of forcible compulsion was not supported, since the complaining witness was unaware of the nature of the physical contact. Accordingly, the court concluded that the allegations failed to establish forcible compulsion by means of physical force, as defendant used stealth, not force, to commit his crime.
It is uncontested that defendant pleaded guilty, before this court, to violating Penal Law § 130.20. It is further uncontested that a person is guilty under Penal Law § 130.20 if "[h]e or she engages in sexual intercourse with another person without such person's consent." PL § 130.20. By statute, lack of consent results from "(a) forcible compulsion; or (b) incapacity to consent; or (c) [w]here the offense charged is sexual abuse or forcible touching, any circumstances. . . in which the victim does not expressly or impliedly acquiesce in the actor's conduct. . ." PL § 130.05. Pursuant to its statutory definition, lack of consent by all logical inference and commentary includes force or compulsion in some form. However, the elements of the charge are not at issue before this court. The issue before this court is whether the evidence presented establishes by clear and convincing evidence that defendant committed his crime, sexual misconduct, by forcible compulsion.
Novelist and Philosopher, Ayn Rand, was quoted as saying that "[r]ationality is the recognition of the fact that nothing can alter the truth and nothing can take precedence over that act of perceiving it." Defendant's argument would propose that the court ignore the complaint, Board summary and probation reports eschewing the recognition of evidence, as well as rationality, in the interest of semantics. Such a proposition disregards logic, basic rationality and a just outcome, premised upon a flawed semantical argument that lack of consent can not evidence forcible compulsion.
The evidence before this court, which includes the complaint, the Board Case Summary, probation and pre-sentence reports, supports a clear and convincing finding of forcible compulsion. ( See, People v. Mingo , 12 NY3d 563 , 572[Reliable hearsay for Sex Offender Registration Act — Risk Assessment]). First, the complaint, signed by a Detective, Josh Ulan, states that defendant "pushed informant onto a bed"; "held informant down"; and "forcibly inserted his penis into informant's vagina without permission or authority". ( See, People v. Mingo, supra, at 574 [Reliable hearsay factor includes records where declarant "was under oath or was acting under a duty to accurately report, record or convey information"]; see also, People v. Moore, 16 AD2d 190, 191 [1st Dept. 2005][Court's consideration of complaint for Risk Assessment determination point assessment deemed proper]). Second, the Board's Case Summary further supports defendant's use of force. ( See; People v. Mingo, supra; [Board's case summaries meet reliable hearsay standards for admissibility at SORA proceedings]; see generally, People v. Pettigrew , 14 NY3d 406 [Risk Assessment Instrument and summary report sufficient to support use of force under Risk Factor 1) As stated above, the Case Summary states that defendant pushed complaint "down on a bed, held her down and forcibly raped her." ( emphasis added; compare with, People v. Val , 38 AD3d 928 , 929 [3rd Dept. 2007][Evidence of pinning and groping of Breast sufficient to establish forcible compulsion element). Finally, contrary to defendant's argument, by definition lack of consent results, in part, from force or compulsion in some form. As such, the terms cannot, in the current case, be evaluated in a vacuum, devoid of the facts asserted and cataloged, based solely on semantics. This Court finds, the evidence, establishes that Mr. Lesta accomplished his crime without consent by the use of "physical force", satisfying the Penal Law's definition of forcible compulsion, ( see Penal Law § 130.00 [a]; e.g. People v. Val, 38 AD3d 928, 929 [3rd Dept. 2007]); warranting the assessment of points under this factor.
Therefore, upon the evidence before this Court, which includes the Risk Assessment Instrument, Board Case Cummary, Pre-sentence and Probation Reports, I find sufficient evidence to support by clear and convincing evidence, that Mr. Lesta used forcible compulsion to commit his crime.
Accordingly, I assess him 10-points on this basis.
Factor 11: Drug or Alcohol Abuse The Board recommended that fifteen points be assessed for history of drug or alcohol abuse under Risk Factor 11. The Board's guidelines provide for a 15-point assessment under Risk Factor 11 if the sex offender has a "substance abuse history" viewed by the Board as a "disinhibitor and therefore . . . a precursor to offending". See, Guidelines 11. The Board does not define "abuse" other than to make clear that "occasional social drinking" does not qualify. Id. The Court may choose to depart from the recommendation where the history of abuse is in the defendant's distant past.
Defense counsel contends the assessment of points are not warranted, since defendant has not used or abused drugs or alcohol since 2007 and was not under the influence of drugs or alcohol at the time of the offense. The District Attorney has sought no assessment under Risk Factor 11 and instead recommended, at the hearing, a zero value, as well as a downward departure to a Risk Level I, based solely on this factor.
At the hearing, the People presented the Court with a letter stating in substances that the People consented to the defendant being adjudicated a Level I sex offender, since his prior marihuana and alcohol use was not related to the instant offense.
I questioned this recommendation and the District Attorney's support of an assessment of zero points. Upon review of the evidence before this court, I find facts supporting the assessment of points by clear and convincing evidence established by defendant's own admission. ( see, e.g., People v. Jenkins , 34 AD3d 352 [1st Dept 2006][opining that a sex offender's own admissions may, of course, constitute reliable hearsay; and as such, admissions have routinely been used as the basis for Risk Factor 11 Assessments]; see also, People v. Roland, 292 AD2d 271, 272 [1st Dept 2002]; see also, e.g., People v. Arnold , 35 AD3d 827 , 827 [2d Dept 2006]; People v. Morales , 33 AD3d 982 [2d Dept 2006], appeal denied, 8 NY3d 805; People v. Perser , 29 AD3d 767 [2d Dept]).
In the present matter, the Probation Report states that Mr. Lesta, a 35-years old male, presently denies the use of drugs, but that he admitted to using marihuana first starting at the age of sixteen thru to age thirty-one stating he used it daily. (Probation Report at 2). The Probation Report further states that at the time of the interview he had abstained from marihuana use since his 2007 release from prison.
Mr. Lesta's admissions to the Probation officer make clear at the least that within recent years, not in the distant past, he has been a daily user of marihuana, and that his use of marihuana has persisted, at least at intervals, over more than a dozen years. Although, the Court congratulates Mr Lesta for his recent abstinence from drug use, marihuana smoking to this extent is beyond question "substance abuse". Indeed, as marihuana is a classic "disinhibitor", Mr. Lesta seems to be exactly the sort of offender the Board had in mind when it promulgated Risk Factor 11 for history of drug abuse. Accordingly, I assess Mr. Lesta 15-points under Risk Factor 11.
Factor 12: Acceptance of Behavior
The Guidelines Risk Factor 12 provides for the assessment of ten-points where it is shown by clear and convincing evidence that an offender has not accepted responsibility for his crime. Although, uncontested by defendant, this Court concludes that there are aggravating factors, which support an assessment of points under Risk Factor 12 that are warranted and supported by clear and convincing evidence. Therefore, this Court, pursuant to the Guidelines and commentary, assesses ten-points.
The Board's Risk Assessment Instrument, dated January 15, 2010, assesses zero-points under Risk Factor 12. However, defendant's Probation Report statements reflect a significant degree of minimalization of his conduct. Although, defendant pleaded guilty, a plea of guilty does not, by itself, establish acceptance of responsibility ( see; People v. Fortin , 29 AD3d 765 [2d Dept 2006]; see also, People v. Mitchell, 300 AD2d 377 [2d Dept 2002]). Review of Mr Lesta's probation report, dated March 11, 2010, shows that he minimizes the act by asserting that "their sexual activity was consensual and [that] he does not know why the complaining witness alleged that he raped her." (Probation Report at 3). Defendant further stated to Probation Officer Abdulwahab, that "he merely pleaded guilty and accepted a sentence of six months in jail, without any ensuing probation, because he feared losing his valuable unionized job. . ." (Probation Report at 3); see also, People v. Wright , 37 AD3d 797, 798 [2nd Dept. 2007][Court deemed proper the assessment of points based on defendant's statement to probation officer for failure to accept responsibility.]).
Accordingly, based on defendant's own admissions, this Court assesses ten-points under Risk Factor 12 for lack of accepted responsibility. For an aggregate total assessment of 90-points, designating Mr. Lesta within the purview score of a Risk Level II — Sex Offender.
CONCLUSION
For the foregoing reasons, Mr. Lesta is designated a level two Sex Offender with a total assessment score of 90-points. This constitutes the decision of the court. A short form order will follow as is required to constitute an appealable order designating defendant as a Level II Sex Offender.
People v. Joslyn, supra . ("Finally, we note that the order containing County Court's final determination, as required by Correction Law § 168-n(3), should have been denominated an order' ( see CPLR § 5512[a]) or contain language that It is so ordered' to clarify that it is an appealable paper.")
The Clerk is directed to furnish a copy of this decision and order to the Division of Criminal Justice Services.
It is so ordered.