Opinion
2715/2011
11-24-2017
The People of the State of New York, Plaintiff, v. Darryl Watts, Defendant.
The defendant was represented by Rachel Pecker, Esquire of the Legal Aid Society. Gabrielle Martin, Esquire represented the People of the State of New York, Bronx County.
The defendant was represented by Rachel Pecker, Esquire of the Legal Aid Society. Gabrielle Martin, Esquire represented the People of the State of New York, Bronx County.
The defendant, Darryl Watts, pled guilty on February 7, 2017 to sexual abuse and assault and was sentenced to six years of incarceration and 10 years post-release supervision. He is required to register as a sex offender pursuant to the Sex Offender Registration Act [hereinafter, SORA], Correction Law, art. 6-C. The defendant was temporarily assessed a Level-2 Sex Offender on consent of the parties until a SORA hearing could be held.
The ability to conduct the hearing was interrupted by defense counsel's assertion her client was unfit to proceed because his mental state had deteriorated during his incarceration for these crimes. In fact, the defendant had mental health troubles before his conviction. Other judges ordered mental health exams pursuant to Article 730 of the Criminal Procedure Law while his indictment was pending and he bounced between findings of fitness to proceed to trial and mental incapacity. The People asserted the defendant's presence at a SORA hearing was not required under the law; the defense insisted otherwise. Substantively, the People argued the defendant's presumptive Level-2 finding established by the Board of Examiners of Sex Offenders (hereinafter, the Board) was correct and the defense argued for a downward departure to Level-1. For the reasons stated below, the Court makes the following findings of fact and conclusions of law and determines the defendant's mental fitness or lack thereof was not a barrier to conducting the SORA proceeding and the defendant was properly designated a Level-2 sex offender.
Background.
On the night of July 15, 2011, at approximately 11 o'clock in the Bronx, the defendant, who was 52 years old at the time, ran behind a 66-year-old woman on the street, knocked her to the ground, kicked her in the torso, punched her in the face, climbed on top of her, forcibly pushed her legs apart, touched her vaginal area, tried to remove her clothing and attempted to rape her. It was the woman's birthday. The attack was thwarted because neighbors ran from their front porches to intervene, holding the defendant until police could be summoned. The woman was treated at a local Bronx Hospital.
On at least four occasions, as early as when he was arraigned on the felony complaint, the defendant was found unfit to proceed to trial and then, after medication and mental health treatment, he was found fit. When he pled guilty he was fit to proceed. Mr. Watts was also present and fit when he was sentenced on February 27, 2017 but because of the considerable length of pre-trial time he had spent incarcerated, he was scheduled for conditional release just two days after the Board was assigned his case for assessment purposes. It was anticipated that Mr. Watts would be supervised as part of a specialized Community Supervision caseload until 2027 and it was agreed by counsel that he would be determined to be a presumptive Level-2 offender until the Board could complete a required Risk Assessment Instrument (RAI) and a SORA hearing held.
The law.
Competency to proceed.
Counsel for the defendant argues that her client, although physically present during the SORA hearing, was at that time living in a secure psychiatric facility and unfit to proceed. In the eight months between the sentencing and the SORA hearing, the defendant was described as having "decompensated" and according to counsel was traveling on a downward spiral into another bout of mental illness. Indeed, the defendant was produced to the hearing from the South Beach Psychiatric Center on Staten Island where he is being held on a civil commitment order until at least March 2018. At the SORA hearing he sat at counsel table with a vacant stare and did not appear to have said a word to his lawyers. Notwithstanding, this Court denied his attorneys' application for a mental competency exam based on the recent decision from the Second Department in People v. Parris, 153 AD3d 68, appeal denied, 2017 LEXIS 3194 (October 24, 2017).
In Parris, the appellate court held that the Supreme Court did not violate the defendant's due process rights when it refused to order a competency examination prior to proceeding with a SORA hearing. In that case, a defendant with a history of mental illness pled guilty to sexual abuse in the first degree. At his SORA hearing, after making several disrespectful and obscene outbursts before the judge, the defendant was removed from the courtroom. Afterward, defense counsel noted that the defendant's mental health issues prevented him from understanding the consequences and nature of a SORA designation. Counsel asserted the court should have discontinued the hearing, ordered a competency proceeding and waited until the client was found competent to proceed. Although acknowledging SORA did not provide for competency exams, the defendant's lawyer argued that it was within the inherent power of the court to order one. 153 AD3d at 73-74. The trial judge in Parris disagreed, as did the Appellate Division, Second Department. This Court also disagrees.
In upholding the Parris trial court, the appellate division noted that Corr. Law § 168-n(3) did not provide for competency exams prior to SORA hearings. Thus, to require a trial court to hold one "would be inconsistent with the goals of SORA and the statute's mandatory registration requirements that were designed to protect the public." Id. at 78. SORA proceedings are civil in nature, the court noted, and the defendant's due process rights are well protected. A defendant receives notice of the proceeding, the right to counsel and discovery. There is also an elevated proof requirement by the state of clear and convincing evidence. Additionally, the defendant has a right to appeal. Moreover, SORA is not designed to impose punishment but to prevent future crimes. Id. at 77.
Here, the defense argued that the temporary Level-2 designation could remain in effect and that would be sufficient protection for the public until a hearing could be held. But that position is not persuasive. As noted by the appellate court in Parris: "If a defendant is never deemed competent to proceed, the risk level classification hearing may never be held. This may result in a risk level designation that does not properly reflect that individual's risk to the community." Id. at 82. The court determined there were other ways to insure the defendant may ultimately participate in his SORA assessment. Pursuant to Corr. Law § 168-o (2), if a sex offender thinks his risk level is inappropriate, he may petition annually to modify it. Therefore, a defendant who is not mentally competent to participate in his initial SORA hearing would be free to seek to modify his final risk level designation if and when he were to become mentally competent. Id. The Risk Assessment.
The Board set forth certain recommendations regarding this defendant. It recommended, pursuant to Corr. Law § 168-1, Art. 6-C, that the defendant be deemed a sexually violent offender because he was convicted of sexual abuse in the first degree, P.L. §130.65. He was also assessed the following points in the following categories: Use of violence, inflicted physical injury — 15; Age of Victim, 63 or more — 30; Relationship with victim, stranger — 20; Prior crimes, non-violent felony — 15; No acceptance of responsibility — 10. His total score was 90 points, which places him in the moderate, Level-2 category. The Board indicated in its written report that a departure from the presumptive risk level was not warranted.
The People bear the burden of proof by clear and convincing evidence where a defendant contests the points assessed to a risk factor. People v. Corn, 128 AD3d 436 (1st Dept. 2015); People v. Mabee, 69 AD3d 820 (2nd Dept.), leave to appeal denied, 15 NY3d (2010); People v. Judson, 50 AD3d 1242, 1243 (3rd Dept. 2008). Whether to grant a downward departure from a presumptive risk level is within the discretion of the trial court. People v. Filkins, 107 AD3d 1069 (3rd Dept. 2013). These departures are the exception rather than the rule. People v. Carter, 138 AD3d 706, 707 (2nd Dept. 2016). The defendant bears the burden of proof to establish the existence of a mitigating factor that would justify any departure. Filkins at 1070.The level of proof for the defendant to obtain a downward modification is lower — a mere preponderance of the evidence — then that which is required by the People to establish a risk level assessment. Carter at 707.
In determining whether a departure from a presumptive risk level is warranted under SORA, the court must 1] decide whether the mitigating circumstances alleged are, as a matter of law, not of a kind or degree taken into consideration in the guidelines; 2] decide whether the party seeking the departure has met its burden of proof and 3] decide whether the totality of the circumstances warrants a departure after weighing the aggravating and mitigating factors. People v. Gillotti, 23 NY3d 841, 850 (2014).
The hearing.
The SORA hearing was conducted on October 30, 2017. The People proved, by clear and convincing evidence through the testimony elicited at the Grand Jury proceeding in this case (the minutes of which were provided to the Court and the defendant), that the sexual attack by the defendant resulted in the imposition of physical injury to a stranger who was 65 years old. There was no dispute that points were properly assessed for the defendant's criminal history.
The only area of contention with the Board's scoring was whether the defendant was properly assessed 10 points for failure to accept responsibility. The People contend that while the defendant admitted his guilt in this Court during the plea allocution, he later denied he was guilty when speaking to officials with the New York Department of Corrections and Community Supervision agency (DOCCS). "It's the People's position that this proves by clear and convincing evidence that the defendant did not accept responsibility based upon his conflicting statements," the assistant district attorney stated at the hearing. This Court disagrees.
When he took the plea on February 7, 2017, Mr. Watts admitted his guilt.He did not back away from accepting responsibility when he was sentenced three weeks later. Unfortunately, the defendant has a history of mental illness; his multiple 730 exams during the pendency of the criminal proceedings against him and his current confinement to a psychiatric center demonstrate that. The mere fact he later told corrections officials he did not commit the crime may speak more to his deteriorating mental state then it does to his refusal to accept responsibility. Therefore, the People have failed to prove by clear and convincing evidence that the defendant has failed to accept responsibility for his conduct. Accordingly, the defendant will be assessed a total of 80 points.
Nothing was introduced at the SORA hearing that showed exactly what the defendant did say to DOCCS.
Notwithstanding the People's failure to prove this factor, 80 points still placed the defendant in the Level-2 moderate risk sex offender category. Nothing in the record supports the defendant's request for this Court to exercise its discretion and grant a downward departure from the defendant's presumptive Level-2 SORA designation. The so-called mitigating factors are that a moderate level would be detrimental to Mr. Watts' health and well-being and might contribute to his recidivism because it would interfere with his ability to re-integrate into the community. As a Level-2 sex offender the defendant would be kept out of suitable public housing and have his identify revealed on the internet as a sex offender, his lawyer argued. She further asserted private landlords have access to the public sex offender web site and use it to avoid renting to Level-2 and 3 offenders.
Counsel also provided several research reports to the Court and the People; Drew Kingston, et al., The Relationship Between Mental Disorder and Recidivism in Sexual Offenders (2015), Int'l Journal of Forensic Mental Health and Andrew J.R. Harris and R. Karl Hanson, Sex Offender Recidivism: A Simple Question, 2004-03, Public Safety and Emergency Preparedness Canada, http://www.psepc-sppcc.gc.ca. The Kingston study concluded "mental illness is not a predictor of recidivism," (id., at 19). The relevant message from the Harris and Hanson report was that sex offenders older than 50 re-offend at half the rate of younger sex offenders.
Neither of these reports are persuasive. First, although Mr. Watts is allegedly mentally ill, the defense provided no evidence to prove that. Given we do not know his current mental state, it hardly seems possible we can predict his future psychiatric condition and how it might impact his likelihood of offending. Similarly, Mr. Watt is not so elderly as to preclude a future relapse into sex offending. As the People indicated at the hearing, how these scholarly studies might relate to Mr. Watts' condition is purely speculative.
Finally, the defense argues that at 80 points, Mr. Watts falls close to the line between a Level-1 and Level-2 offender, and therefore, in these circumstances a lower assessment is merited. His lawyers point to the Carter and Filkins cases as supporting downward modification. The People say this argument leads courts down a "slippery slope." In fact, in both cases presented by the defense there were alternative factors pointing to the appropriateness of a downward departure. Carter concerned a statutory rape case where the Board "has long recognized that strict application of the Guidelines may in some instances result in overassessment of the offender's risk to public safety," 138 AD3d at 707. It was the fact there was only a five-year age difference between the offender and the victim, it was a statutory rape case and the Board's assessment was close to the line that warranted a downward departure. In Filkins the hearing court did not set forth its findings of fact and conclusions of law as required, coupled with the five-point discrepancy between the defendant's score and the next level of classification that warranted a possible downward departure. 107 AD3d at 1070. This is not a statutory rape situation, but a violent encounter between the defendant and an elderly stranger. And here, unlike in Filkins, the defendant was afforded a full hearing.
Accordingly, the defendant has failed to prove by a preponderance of the evidence that a downward departure is warranted. The Court finds that the Board's assessment of the defendant is accurate and the defendant is hereby assessed as a Level-2 sex offender and subject to all the statutory registration requirements.
This constitutes the Decision and Order of the Court. DATED: November 24, 2017 Bronx, NY ____________________________________ Diane Kiesel, Acting Supreme Court Justice