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People v. Williams

Supreme Court of New York, First Department

March 21, 2017

The People of the State of New York, Respondent,
v.
Andrew Williams, Defendant-Appellant.

          Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.

          Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.

          Acosta, J.P., Renwick, Moskowitz, Feinman, Gesmer, JJ.

         Order, 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 costs.

         This 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).

         In 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.

         In the 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 hardworking."

         Defendant 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. [1]

         Defendant 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.

         Defendant's 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 departure...."

         Defendant's 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.

         The 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.

         Defendant 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 level two.

         The 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 [2014]). 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, ...


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