Opinion
No. 2010SU16253.
2012-12-6
The PEOPLE of the State of New York, v. Hector MORI, Defendant.
Thomas J. Spota, III, Suffolk County District Atty., By Maggie Bopp, Asst. District Atty. Central Islip. Keith Weidman, Esq., Hauppauge, for the Defendant.
Thomas J. Spota, III, Suffolk County District Atty., By Maggie Bopp, Asst. District Atty. Central Islip. Keith Weidman, Esq., Hauppauge, for the Defendant.
JOHN ANDREW KAY, J.
On October 23, 2012 a hearing was held pursuant to the Sex Offender Registration Act (Corrections Law 168–n) to determine the defendant's sex offender risk level designation following his guilty pleas and convictions for Sexual Abuse in the Second Degree, in violation of Penal Law 130.60, and Endangering the Welfare of a Child, in violation of Penal Law 260.10. The Sex Offender Registration Act (SORA) Risk Assessment Instrument prepared for the defendant reflected a total score of 125, which would result in a level 3 sex offender designation (high risk of repeat offense). The parties agreed on the assessment of points against the defendant as set forth on the Risk Assessment Instrument, with the exception of 40 points assessed against the defendant for the risk factors numbered 9, 12, 13, 14 and 15. Both the People and the defense were heard with respect to the risk factors at issue, and the defendant also testified on his own behalf. Based on the clear and convincing evidence presented at the hearing, the Court finds as follows:
With respect to risk factor number 9 pertaining to a prior history with no sex crimes or felonies, the People demonstrated that the defendant had a prior conviction for an alcohol-related offense in 2004. The Court therefore finds that the 5 points at issue for this risk factor were properly assessed against the defendant based upon his prior history.
With respect to risk factor number 12, the People maintain that the defendant has not accepted responsibility for his crimes as evinced by his statement to a Seventh Precinct detective in 2010, “I drink a lot, I don't remember doing anything to them.” The defendant testified at the hearing that he was very sorry and felt “embarrassed.” The defendant also admitted at the hearing that he had told Dr. Reitman, with whom he had undergone treatment in 2011, that he was “surprised” at the allegation that he abused his children and never thought he was capable of hurting them. The defendant's denials of memory of his conduct, blaming his intoxication, his statements that he was surprised by the allegations that he abused his children and never thought he was capable of hurting them, and his expression of embarrassment by the charges, constitute clear and convincing evidence that the defendant has not accepted responsibility for his actions. See, e.g., People v. Marinconz, 178 Misc.2d 30, 35 (Sup.Ct., Bronx Co.1998). The Court accordingly finds that the 10 points at issue were properly assessed against the defendant on risk factor number 12.
Turning to risk factor number 13, it is uncontroverted that the defendant repeatedly violated the conditions of his interim probation by failing to report on two occasions and failing to call probation, and that he was absent for a home visit at which the probation officer learned that a four year old girl lived in the same house. On August 22, 2012 the defendant admitted having violated his conditions during the period of time while he was under supervision. The Court therefore finds that the defendant's adjustment to supervision has been unsatisfactory ( see, e.g., People v. Fredenburg, 27 AD3d 970 [3rd Dept.2006]; People v. Hernandez, 7 Misc.3d 151 [Sup.Ct., Bronx Co.2005] ) and that 10 points were correctly assessed against the defendant on risk factor number 13.
With respect to risk factor number 14, the People offered clear and convincing evidence that the defendant failed to make progress despite receiving treatment during the period of his supervised release, and that his conduct was unsatisfactory during that period. See, e.g., People v. Hernandez, supra. The Court therefore finds that the assessment of 5 points against the defendant for this risk factor was also proper.
Turning to risk factor number 15, it is uncontroverted that the defendant was discovered to be living in a house in which a four year old girl also resided while he was on interim probation. The Court finds that this constituted an inappropriate living situation which violated the conditions of the defendant's release, and that the assessment of 10 points against the defendant on risk factor number 15 was correct.
In accordance with the foregoing, the Court finds that the People have demonstrated by clear and convincing evidence that the defendant's total overall score on the risk assessment instrument was correctly assessed at 125. The defendant therefore is designated as a level 3 sex offender.
This constitutes the decision and order of the Court.