S. Dean, Center for Appellate Litigation, New York (Abigail
Everett of counsel), for appellant.
R. Vance, Jr., District Attorney, New York (Kelly L. Smith of
counsel), for respondent.
Acosta, J.P., Renwick, Moskowitz, Feinman, Gesmer, JJ.
Supreme Court, New York County (Larry R.C. Stephen, J.),
entered September 10, 2015, which adjudicated defendant a
level three sexually violent offender pursuant to the Sex
Offender Registration Act (Correction Law art. 6-C),
unanimously modified, on the facts and in the exercise of
discretion, to the extent of reducing the adjudication from
level three to level two, and otherwise affirmed, without
appeal presents one of the rare cases in which we should
exercise our discretion to depart downward from
defendant's presumptive sex offender risk assessment
level. During his 30 years of incarceration, defendant
committed himself to changing his life. At age 52, he is
markedly different from the 20 year-old who committed the
violent offense that requires his registration. Defendant has
completed academic and therapeutic programming that greatly
diminish his likelihood of re-offending. His likelihood of
reoffense is further decreased by the pain and mobility
problems that he has developed. Under these circumstances, we
find that the risk assessment instrument (RAI) did not
"fully capture" that defendant has demonstrated his
ability to be a constructive member of society who does not
pose the high level of reoffense characteristic of a level
three sex offender (see Guidelines at 4).
1984, defendant raped and robbed a 22-year old woman on the
rooftop of her building. At the time, he had been using
phencyclidine (PCP) and marijuana, and suffered from
alcoholism. Following his conviction after trial of one count
of rape in the first degree and five counts of robbery in the
first degree, defendant was sentenced to a term of
imprisonment of 15 to 30 years, which was run consecutively
to a term of 12½ to 25 years that he received on an
unrelated robbery conviction.
30 years since these heinous offenses, defendant has taken
major steps to turn his life around. He obtained his GED in
1986, an Associate's Degree in 1992, and two
Bachelor's Degrees, in 2007 in human behavior and in 2008
in organizational management. Defendant also hopes to pursue
a law degree. The attorney who assisted him with his parole
application has offered to mentor him in this endeavor. She
submitted a letter of recommendation in support of his
application for a downward departure, the first time she had
ever done so, in which she stated that "[h]is narrative
illustrates the rehabilitative force of education" and
described him as "reliable, respectful and
also took advantage of therapeutic programming related to
substance abuse and nonviolent conflict resolution. He
completed a 16-week Islamic Therapeutic Substance Abuse
Program, the Department of Correction and Community
Supervision's Alcohol and Substance Abuse Treatment
program, and the Compadre Helper Bilingual Peer Counseling
Training Program, in which he acquired counseling skills
while receiving therapy for drug and alcohol abuse.
Additionally, he participated in the Alternatives to Violence
Project (AVP) where he completed basic and advanced
nonviolent conflict resolution course work before training to
become a program facilitator. Defendant's performance
with AVP was praised in a letter of recommendation from a
former program facilitator who recognized defendant as a
"positive contributor" to the program and a
"good influence" on his fellow inmates.
has also strengthened his community ties while incarcerated.
Defendant communicated by mail with one of his childhood
friends who is now a District Manager for the Social Security
Administration. In her letter supporting his application,
defendant's friend remarked that, through his letters,
she has seen defendant "mature over the years"
and she hopes that they remain friends. Defendant also found
support in the Islamic community while incarcerated.
efforts at rehabilitation have been recognized by two of his
correction officers. One officer stated that defendant
"deserves a chance" and is "intelligent,
possesses insight and is a respectable person." This
officer expressed his belief that "[defendant] will not
return to prison once released." The other officer, who
stated that he normally does not write inmate recommendation
letters but had made an exception for defendant, believed
that defendant would "re-enter society successfully and
be a contributing member of his community." He added
that defendant is the "perfect candidate for any
incarceration has also been marked by a decline in his
mobility. In 1996, defendant fell down a flight of stairs and
suffered multiple disc herniations for which he underwent
surgery (see Williams v Smith, 2009 WL 2431948, at
*1, 2009 U.S. Dist LEXIS 69871, *2 [SD NY Aug. 10, 2009]). He
continues to suffer from degenerative disc disease in his
spine, a bulging disc, and herniation in his back. The
results of a 2014 MRI indicated the presence of a "large
disc protrusion" causing "spinal stenosis."
While incarcerated, defendant has received physical therapy
and steroid injections to treat his continued pain.
Additionally, his physical therapist has ordered him not to
lift more than 10 pounds.
Parole Board scheduled defendant, then 51 years old, for an
open release date of July 21, 2015. Notice of this release
date was submitted to the Board of Examiners of Sex
Offenders. On July 2, 2015, an examiner scored defendant on
the RAI at 135, which placed him at a presumptive level three
sex offender adjudication. No departure was recommended.
appeared for a SORA hearing on September 10, 2015. At the
hearing, he did not dispute the calculation of his
presumptive risk level. However, defendant moved for a
downward departure, arguing that, among other things, his
efforts at rehabilitation and his medical condition warranted
a departure from his presumptive level three risk assessment.
He submitted a number of exhibits, including copies of his
degrees and certificates, the letters of recommendation that
he had received, and his medical records attesting to his
pain and mobility issues. His counsel argued that a level two
adjudication would be adequate to monitor defendant because
it involved many of the same registration requirements as a
level three adjudication. The SORA court recognized
defendant's accomplishments but declined to grant a
downward departure, citing the seriousness of his underlying
offense. We now exercise our discretion to modify
defendant's sex offender adjudication from level three to
Court of Appeals has enunciated a three-step process for
determining whether to depart downward from a defendant's
presumptive risk level (see People v Gillotti, 23
N.Y.3d 841, 861 ). First, a court must decide whether
the proffered mitigating circumstance or circumstances are
"of a kind, or to a degree, not adequately taken into
account by the guidelines" (Gillotti, 23 N.Y.3d
at 861, citing Guidelines at 4). Second, a court must
determine whether the defendant seeking a downward departure
has proven the existence of these alleged mitigating
circumstances by a preponderance of the evidence
(id. at 864). If the defendant surmounts these first
two steps, ...