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People v. Parris

Supreme Court of New York, Second Department

June 28, 2017

People of State of New York, respondent,
Karl Parris, appellant.

         APPEAL by the defendant from an order of the Supreme Court, Queens County (Koenderman, J.), dated July 16, 2012, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

          Lynn W. L. Fahey, New York, NY (A. Alexander Donn of counsel), for appellant.

          Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, William H. Branigan, and Anish M. Patel of counsel), for respondent.


          OPINION & ORDER

          ROMAN, J.

         In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), the defendant, who had a history of mental illness, was removed from the courtroom after making several outbursts during his SORA risk assessment hearing. The hearing proceeded in the defendant's absence, and the Supreme Court designated the defendant a level three (high risk) sex offender. On this appeal, we are principally called upon to consider whether the court violated the defendant's right to due process by failing to order a mental competency examination before proceeding with the SORA hearing. For the reasons that follow, we find that the court properly proceeded with the SORA hearing and designated the defendant a level three sex offender.

         As set forth in the presentence report (hereinafter PSR), in December 2007, the defendant, then 17 years old, approached the complainant, who was jogging in Baisley Pond Park in Queens, and pushed her to the ground. As further stated in the PSR, the defendant pulled the complainant's pants down as she struggled, "took his penis out, rubbed it against her vagina and attempted to push his penis into her vagina." The complainant grabbed the defendant's penis, twisted it, and the defendant ran away.

         On February 2, 2008, the defendant was arrested in connection with the armed robbery of an individual in Queens. Later that same day, he was arrested in connection with the instant sex offense. According to the sworn felony complaint, "the defendant admitted that he put his penis in the complainant's vagina." The PSR indicated that the defendant told the arresting officer that he "saw a pretty girl jogging in Baisley Park and wanted to have sex because he had been promised sex by two girls on Myspace' and they did not show up." Additionally, the defendant stated during his interview with the Probation Department that he "knew the complainant from the park" and that "the sex was mutual."

         The defendant was charged with sexual abuse in the first degree. In April 2008, the defendant underwent two competency examinations pursuant to CPL 730.30 to ascertain his fitness to proceed with respect to three pending criminal cases, including the instant offense, and he was deemed not fit to proceed. An examination report dated April 14, 2008, stated that the defendant "would not be able to conduct himself in an appropriate manner in any court proceedings at this time, " and diagnosed him with "Psychotic Disorder, Not Otherwise Specified." A second examination report, dated April 15, 2008, prepared by a different evaluator, found that the defendant was "thought disordered and unable to discuss his charges in any reasonable fashion, " or "much of anything in a meaningful way, " and diagnosed him with "Psychosis, NOS."

         Subsequently, the defendant was found fit to proceed, and on October 6, 2008, he pleaded guilty to sexual abuse in the first degree. A presentence mental health examination report dated October 29, 2008, which deemed the defendant fit to be sentenced, indicated that the defendant's prescribed psychiatric medication appeared to be helping with his symptoms and that he was aware of the charges against him.

         The defendant was sentenced to an aggregate term of 54 months of imprisonment to be followed by five years of postrelease supervision.

         In April 2012, in anticipation of the defendant's release, the Board of Examiners of Sex Offenders (hereinafter the Board) prepared a case summary and a Risk Assessment Instrument (hereinafter RAI) to assess the defendant's risk of reoffense and the threat he posed to the safety of the public (see Correction Law § 168-l[5]). The Board assessed the defendant a total of 115 points, making him a presumptive level three (high risk) sex offender.

         According to the case summary dated April 27, 2012, the defendant "currently" was in a Department of Corrections and Community Supervision (hereinafter DOCCS) "Intensive Care Program Facility in order to receive the appropriate level of Mental Health treatment that he requires." Additionally, the defendant was on the required program list for the DOCCS Sex Offender Counseling and Treatment Program following "a history of refusing sex offender treatment." The case summary also set forth the defendant's criminal history, which included convictions for criminal contempt in the second degree, robbery in the third degree, and attempted assault in the second degree. The defendant's conviction for attempted assault in the second degree stemmed from conduct which occurred during his confinement in the correctional facility. The defendant was also arrested in February 2012 for assault.

         The case summary further indicated that the defendant's custodial adjustment was "considered unacceptable and include[d] serious Tier III sanctions for Lewd Conduct which he received on September 23, 2010 [and] November 9, 2011, " and that he also had "a Tier III pending for Lewd Conduct." The defendant had "also garnered an additional 10 Tier II's and 10 Tier III's." The Board concluded that a level three designation was "the most appropriate Level for this sexually violent ...

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