Opinion
8460/2010
10-16-2012
The People of the State of New York v. Shawn Perkins a/k/a/ Bahati Griffin
For the People: Allegra Santomauro, Esq., A.D.A. Ann Good-Lieb, Esq., A.D.A. For the defendant: Larry Rothstein, Esq.
For the People: Allegra Santomauro, Esq., A.D.A. Ann Good-Lieb, Esq., A.D.A.
For the defendant: Larry Rothstein, Esq.
Dineen Riviezzo, J.
A hearing pursuant to the Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.) was conducted before this court on October 11, 2012. The Board assessed the defendant 100 points, recommending that he be classified as a Risk Level 2 offender. For the reasons stated below, the court modifies the Board's assessment, and finds that aggravating factors exist to support an upward departure to Risk Level Three.
Facts and Procedural History
On August 8, 2012, after a jury trial over which this court presided, the defendant was found guilty of one count of sexual abuse in the third degree, and one count of endangering the welfare of a child. The defendant, charged with, inter alia, rape in the third degree, testified in essence that the victim, his second cousin, had initiated sexual contact, and that although he had engaged in sexual contact with the victim, he was innocent of statutory rape and oral sexual conduct. The jury found the defendant not guilty of five of the counts submitted, and found the defendant guilty of the two counts set forth above. This court later sentenced defendant to concurrent terms of 90 days and 1 year incarceration, respectively.
Point Assessment
The court agrees with the Board's recommendations as to Risk Factors Numbered 5, 9, and 10. As to Risk Factor Number 5 ("Age of Victim"), the court assesses the defendant 20 points based on the victim's age (16 years old) at the time of the instant offense. As to Risk Factor Number 9 ("Nature of Prior Crimes"), the court assesses the defendant 30 points on account of his prior violent felony conviction for manslaughter. Similarly, as to Risk Factor Number 10 ("Recency of Prior Offense"), the court assesses the defendant 10 points, because the defendant had been out of jail on the manslaughter conviction for less than three years. Indeed, only 6 months transpired between defendant's release and the commission of the instant offense.
As to Risk Factor Number 12 ("Acceptance of Responsibility"), the Board assessed the defendant 10 points, because the probation report indicated that the defendant denied responsibility for the crimes committed. However, at the time of sentence, the defendant, through his attorney, explained that when interviewed by the probation department, defendant denied the conduct for which he was acquitted, i.e., having sexual and oral intercourse with the victim, but admitted his guilt for the conduct which he testified to — fondling the victim's breasts, vagina and buttocks over her clothing. The court consequently disagrees with the Board's recommendation under Risk Factor Number 12, and declines to assess these 10 points, since defendant did not deny the conduct for which the jury found him guilty.
As to Risk Factor Number 2 ("Sexual Contact with the Victim"), and Risk Factor Number 6 ("Other Characteristics of the Victim"), the Board assessed the defendant 10 points for contact under clothing, and 20 points based on the victim's physical helplessness. The later assessment was predicated on the victim's allegation that she was sleeping when the defendant put his hands under her pants and fondled her vagina.
The jury found defendant guilty of sexual abuse in the third degree under count five, which, under the court's specific instructions, meant that the jury found defendant guilty of touching the victim's vagina with his hands before the victim's sister awoke. At that point in time, the victim testified that she was asleep on the sofa when the defendant put his hands under her pants and touched her vagina, which caused her to wake up. (Trial p.53-54) On the contrary, the defendant testified that while the victim's sister was sleeping nearby, the victim was fully awake. He further testified that she "rubbed on him" (Trial p. 330) a number of times, and they touched each other's intimate parts over clothing. Since a conviction for sexual abuse in the third degree can involve touching either directly or over clothing, and the theory as to lack of consent submitted to the jury was predicated solely on the victim's age (and not being physically helpless), it cannot be said that the jury did not credit the victim's testimony on this point.
Under either the defendant's or the victim's version of the events, the incident began in a living room, where other persons were sleeping, and then continued in a bathroom.
The People have the burden of proving the facts necessary to support a point assessment by clear and convincing evidence. (People v. Wyatt, 89 AD3d 112, 931 N.Y.S.2d 85 [2d Dep't 2011] [distinguishing between the initial determination and subsequent proceedings]). The court presided over the trial and observed the testimony and demeanor of both the victim and the defendant. The court credits the victim's testimony that this touching was under her clothing and that she was asleep when it occurred. The court did not find the defendant's testimony credible that (1) the victim began rubbing against him, and thus was not sleeping, and (2) defendant was able to exercise sufficient restraint not to fondle her under her clothing, because he admittedly wanted to have sexual intercourse with her, was attracted to her, and even had an erection.
The court is not bound or limited to the findings of fact necessarily made by the jury. In this regard, People v. Kost (82 AD3d 729, 917 N.Y.S.2d 916 [2d Dept. 2011]) is very much on point. There, the jury acquitted the defendant of the charges related to his possession of a weapon. Nonetheless, the judge presiding over the SORA hearing still assessed the defendant 30 points for "armed with a dangerous instrument" on the strength of the victim's statement. The victim's statement provided a sufficient basis, not withstanding the acquittal on those counts, for clear and convincing proof of defendant's possession of a weapon. Notably, unlike the situation presented in Kost, the portion of the victim's testimony that the court is crediting in assessing these additional 30 points is not inconsistent with the verdict reached by the jury.
Lastly, the court notes that with regard to Risk Factor 6, it is well settled that "sleeping" is considered "physically helpless" for these purposes. (See People v. Howell, 82 AD3d 857, 918 N.Y.S.2d 364 [2d Dept. 2011] [County Court properly assessed the defendant 20 points under Risk Factor 6 based on the complainant's Grand Jury testimony that she was sleeping at the beginning of the incident and was thus "physically helpless."])
Aggravating Factors Warranting an Upward Departure
While the court has calculated defendant's score at a total of 90 points, which would warrant a designation of Level Two, the court exercises its discretion in designating defendant a Level Three sex offender, based upon aggravating factors of a kind or a degree that are otherwise not adequately taken into account by the guidelines. "A court may exercise its discretion and depart upward from the presumptive risk level where 'it concludes that there exists an aggravating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines'" (People v McDonnell, 89 AD3d 815, 815, 932 NYS2d 352, 352 [2011], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006 ed.]). "There must be clear and convincing evidence of the existence of the aggravating factor to warrant the court's exercise of discretion" (People v McDonnell, supra, 89 AD3d at 816; see Correction Law § 168-n [3]; People v Wyatt, 89 AD3d 112, 118, 931 NYS2d 85 [2d Dept. 2011] [ the cited aggravating factor must tend to establish a higher likelihood of reoffense or danger to the community and be of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines]).
The aggravating factors the court finds are not based on the testimony of the victim that the jury rejected — namely, that the defendant engaged in statutory rape and oral sex. Rather, the aggravating factors are defendant's own admissions under oath during his trial testimony. The purpose of the risk assessment instrument is to assess the risk of repeat offense by a sex offender and the threat posed to public safety. (Correction Law § 168-l [5].) The Act makes clear that the threat posed by a sex offender depends upon two factors, i.e., (1) the offenders' likelihood of reoffense, and (2) the harm that would be inflicted if he did reoffend. (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 2 [2006 ed.])
Here the defendant's trial testimony shows that he is at grave risk of reoffending, and that the harm that he would inflict if he reoffended would be grave. Defendant testified that he was attracted to the victim (Trial p. 355), that he wanted to have sex with her (Trial p. 355 - 356), and that his sexual contact with her caused him to have an erection (Trial p. 362). The court finds incredible defendant's testimony that he did not know that she was underage. However, irrespective of the court's determination in this regard, defendant still acknowledged that while he knew she was only in high school (Trial p. 338), he never bothered to ask her age (Trial p. 324). Thus, at the very least, defendant had reason to believe the victim was underage, but by his own testimony, never bothered to find out. It is an unescapable conclusion that by his own admission defendant is attracted to teenage, if not underage, girls. (Trial p.355.)
Furthermore, defendant's testimony demonstrates that he was dangerously close to having sex with this child. He fondled her repeatedly, became sexually aroused, and at his suggestion, by his own admission, he took her into the bathroom for the very purpose of having sexual intercourse. (Trial p. 356). In his own words, when asked why he didn't engage in sexual intercourse with the victim, defendant stated:
"It wasn't out of any moral, you know, high ground. It was just - I just wasn't prepared to do anything without protection." (Trial p. 333)
Thus, in essence, by his own admission, only the fortuitous circumstance that he did not have a condom prevented him from having sex with the victim. (Trial p. 355, 356). The fact that the victim was related to him, the fact that he had been released from prison a few months earlier, the fact that the victim was in high school while he was 36 at the time of the offense (Trial p. 368), the fact that he was married (Trial p. 351), the fact that he was on parole for manslaughter, the fact that he committed these offenses while in his cousin's home filled with his own sleeping relatives including his three young children, the fact that he committed the offenses while two females were sleeping right outside the bathroom door (Trial p. 357), the fact that he ran a real risk of being caught — none of these factors were sufficient to prevent him from fondling her breasts, vagina and buttocks, kissing her (Trial p. 368), and in his own words "feeling on her" (Trial p. 331), and coming close to having sex with her.
And almost equally troubling is the fact that defendant hadn't even bothered to learn the victim's name. He called her "twin" (she had a twin sister), which reinforces the fact that this young girl was simply a nameless object of his desire:
"Q: Why did you call her twin?"
"A: I didn't realize who she was. Out of the twins, I didn't even know who they were. I used to call them twin all day long. I didn't know the difference between them." (Trial p. 330-331)
The court further notes that having observed the victim and her sister testify at the trial, these sisters were fraternal, not identical, twins, a fact confirmed by the People at the hearing.
Finally, having watched defendant's testimony, the court finds defendant's purported regret for having hurt his family simply incredible and self-serving.
Defendant's testimony, in essence, amounts to an admission that he was sexually attracted to a teenage girl, who was his second cousin; that if he had a condom, he would have engaged in statutory rape, but having no condom he knowingly and voluntarily sexually abused her - without regard for the morality or consequences of his conduct. His inability to control his impulses in the environment in which this offense occurred, where any one of many, many factors set forth above should have dissuaded him from ANY sexual contact, convinces the court that he is in need of the highest level of supervision to prevent this kind of sexual contact or potential statutory rape from occurring in the future.
Defendant is found to be a Risk Level Three.
This constitutes the order of the court.
10-16-2012
Date10-16-12J.S.C.
APPEARANCES:
For the People:
Allegra Santomauro, Esq., A.D.A.
Ann Good-Lieb, Esq., A.D.A.
For the defendant:
Larry Rothstein, Esq.