For the People: Cyrus R. Vance By A.D.A. Michelle Bayer.
For the Defendant: Office of the Appellate Defender By Avi Springer, Esq. and Lauren Stephens-Davidowitz, Esq.
Juan M. Merchan, J.
FINDINGS OF FACT
This matter came before the Court on August 8, 2012 for a Sex Offender Registration Act hearing (Correction Law Article 6-C §168, hereinafter "SORA" hearing). Defendant scored 115 points on the SORA Risk Assessment Instrument (hereinafter "RAI") thus classifying him a Level III - high risk to re-offend. By way of motion he now seeks a downward departure to Level II - moderate risk to re-offend classification. The People oppose Defendant's motion and contend that Defendant was properly assessed 115 points. The People further argue that Defendant should be classified a Level III risk to re-offend even if this court finds that he was improperly assessed 115 points.
On July 9, 2007, the Defendant, Steven Vasquez, who was 15 years old at the time of this incident, and his co-defendant, entered the victim's apartment by climbing up the back fire escape and into her window. The Defendant took a BB gun, which belonged to the victim's roommate, pointed it at the victim and told her to "get back." Thereafter, Defendant and co-defendant proceeded to steal property from the victim's apartment. They then gagged and bound the victim's hands and feet behind her back. The Defendant opened the victim's shirt, pulled down her underwear and vaginally raped the victim while she was still bound. Defendant raped the victim two additional times and ejaculated on her face, hair and arm.
On February 11, 2010, Defendant pled guilty to four counts of Rape in the First Degree (PL §130.35), a Class B violent felony, Burglary in the Second Degree (PL §140.25[d]), a Class C violent felony, and Robbery in the Second Degree (PL §160.10[b]), a Class C violent felony. Defendant was sentenced to two and a half to seven years in prison on each count, all to run concurrently. Defendant was conditionally released on August 22, 2012, and is currently under specialized Community Supervision until January 7, 2015.
The sex offense for which Defendant was convicted requires him to register in New York as a sexually violent offender. Defendant scored 115 points on the RAI. Specifically, Defendant was assessed 30 points for being armed with a dangerous instrument; 25 points for having sexual intercourse with the victim; 20 points because the victim suffered from mental disability, incapacity or physical helplessness; 20 points because the victim was a stranger; 10 points because Defendant was under 20 years of age at the time of his first act of sexual misconduct; and 10 points for unsatisfactory conduct while confined.
On July 27, 2012, prior to the SORA hearing, Defendant submitted a memorandum in support of his motion for a downward departure from his presumptive risk level III adjudication. On August 6, 2012, the People filed a memorandum in opposition to Defendant's motion. On August 7, 2012, Defendant filed a reply affirmation in response to the People's memorandum. On August 8, 2012, this Court conducted a SORA hearing to determine Defendant's sex offender risk level. Defendant moves for a downward departure from his presumptive risk level III adjudication. Defendant is a 20-year-old man with moderate brain damage caused by chronic lead poisoning. He claims that a Level III adjudication and the residency restrictions that come with such a finding, would force him to live in a homeless shelter and deprive him of social services and treatment critical to his rehabilitation and reintegration into the community. Defendant argues that the resulting instability would in all certainty increase the risk of recidivism rather than provide public safety, which would be effectively protected by a Level II classification in light of the registration requirements and conditions imposed upon sex offenders classified at that level.
Defendant further contends that the Board of Examiners of Sex Offenders (hereinafter "Board") improperly assessed 30 points for being armed with a dangerous instrument during the commission of the crime. Specifically, Defendant argues that the BB gun used in the offense does not constitute a dangerous instrument as defined under the Penal Law. Therefore, Defendant contends that only 10 points should be assessed under this category for the use of forcible compulsion.
In addition, Defendant disputes his assessment of 10 points for being under 20 years of age at the time he committed his first act of sexual misconduct. According to the Defendant, this risk factor refers in actuality to a defendant's age at the time of previous criminal conduct and not to a defendant's age at the time of the instant offense. Lastly, Defendant opposes his assessment of 10 points for unsatisfactory conduct while confined based on a conviction for Attempting to Promote Prison Contraband in the First Degree. Defendant contends that this assessment diminishes the significant progress he made while incarcerated and that, though a serious offense, other defendants are assessed 10 points under this factor for behavior significantly more serious than Defendant's conduct.
The People oppose Defendant's application and support the recommendation of the Board that Defendant be classified a Level III sex offender. The People alternatively argue that even if this Court were to score the Defendant a Level II risk to re-offend based on the RAI, an upward departure is warranted based on the serious nature of this crime, Defendant's felony conviction while incarcerated involving possession of pornography while confined and his denial of responsibility for the instant offense. In addition, the People claim that Defendant's arguments that a Level III classification would limit his access to social services and render him homeless are purely speculative and that Defendant may explore other residential options. The People further argue that the Board properly assessed the Defendant 30 points for being armed with a dangerous instrument.
Moreover, the People argue that the Board properly assessed 10 points for Defendant's age at the first act of sexual misconduct. Specifically, the People contend that the plain language and underlying rationale of factor 8, do not refer to "prior crimes, " and that as those who offend at a young age are more prone to reoffend, this factor properly applies to the first act of sexual misconduct, irrespective of whether this was the subject of the instant conviction. Lastly, the People argue that Defendant's unsatisfactory behavior while incarcerated should not be minimized given that he was convicted of a new felony while in prison and that he was involved in smuggling contraband.
Upon review of the motions and all evidence presented to this Court in support of and opposition thereto, and after due deliberation thereon, Defendant's application for a downward ...