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People v. Curry

Supreme Court of New York, Second Department

December 27, 2017

People of State of New York, respondent,
v.
Chealique Curry, appellant.

         APPEAL by the defendant from an order of the Supreme Court (Matthew J. D'Emic, J.), dated February 10, 2016, and entered in Kings County, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

          Paul Skip Laisure, New York, NY (Jenin Younes of counsel), for appellant.

          Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Joyce Adolfsen, and Daniel Berman of counsel), for respondent.

          RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, JEFFREY A. COHEN, JJ.

          OPINION & ORDER

          ENG, P.J.

         The Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), New York's version of "Megan's Law, " was enacted in response to the 1994 rape and murder of a seven-year-old child by a convicted sex offender who lived across the street from her home. When the Legislature passed SORA into law, it required the establishment of a board of examiners of sex offenders (hereinafter the Board), composed of "experts in the field of the behavior and treatment of sex offenders" (Correction Law § 168-l[1]), and charged the Board with the responsibility of developing "guidelines and procedures to assess the risk of a repeat offense by [a] sex offender and the threat posed to the public safety" (Correction Law § 168-l[5]). Acting on this statutory mandate, the Board created a risk assessment instrument (hereinafter RAI) to be used as a tool in determining a sex offender's risk of reoffense and threat to public safety. At issue on this appeal is whether the fact that an offender scores as being at a lower risk to reoffend on a different type of assessment instrument is a mitigating factor that may support a downward departure from the offender's presumptive risk level as determined by using the RAI. We conclude that a lower risk score on a different assessment instrument is not a circumstance which, standing alone, may be considered a mitigating factor, and that the Supreme Court thus properly denied the defendant's request for a downward departure on this ground.

         The defendant's conviction of sexual abuse in the first degree stems from acts committed on February 16, 2011, when he was 31 years old. On that date, the defendant went to the apartment of his then 22-year-old former girlfriend. He banged on the front door demanding that the victim let him in, and threatened to break in through a window if she refused to do so. The victim let the defendant into her apartment, and once inside, the defendant asked to see the victim's phone. When the victim refused to show the defendant her phone, he threatened to beat her. The victim attempted to leave the apartment through the front door, but the defendant stopped her. She then tried to leave through a window. The defendant grabbed her wrist, pushed her onto a sofa, and slapped her face twice, telling her that if she did not give him her phone, she would be in the hospital. After the victim gave the defendant her phone, the defendant threw her onto her bed, removed her pants, and bit her neck and buttocks. The defendant then raped the victim as she struggled and told him to stop.

         For these acts, the defendant was charged with multiple crimes, including rape in the first degree and sexual abuse in the first degree. The defendant eventually pleaded guilty to sexual abuse in the first degree in satisfaction of the indictment, and was sentenced in July 2013 to a period of five years of imprisonment and a five-year period of postrelease supervision.

         In anticipation of the defendant's release from incarceration, in November 2015, the Board prepared an RAI which scored the defendant 95 points, indicating that he was at moderate risk of reoffending and should be presumptively classified a level two sex offender. Specifically, in the section of the RAI that considers the nature of the offense, the Board scored the defendant 15 points for the infliction of physical injury, and 25 points for engaging in sexual intercourse with the victim. In the section that considers the offender's criminal history, the Board scored the defendant 15 points for a prior history of nonviolent felony offenses, and 15 points for a history of drug or alcohol abuse. Finally, in the section that considers postoffense behavior, the Board scored the defendant 15 points for his refusal to participate in treatment, and 10 points for unsatisfactory conduct while incarcerated. In its accompanying Case Summary, the Board recommended against a downward departure, pointing out that while the defendant was in custody, he was additionally convicted of the felony offense of attempted promoting prison contraband in the first degree, and that he had been removed from sex offender treatment for disciplinary reasons and was now refusing to participate.

         In February 2016, the Supreme Court conducted a hearing to determine the defendant's risk level. At the start of the hearing, defense counsel noted that the defendant was not contesting the points scored on the RAI. However, defense counsel urged the court to grant the defendant a downward departure, pointing out that this was the defendant's first sex offense, that he had pleaded guilty, and that he would be under supervision until 2021. Defense counsel further maintained that it was "noteworthy" that the defendant had scored favorably on two actuarial instruments used to assess the risk of reoffense. More specifically, the defendant scored as a low risk on the Vermont Assessment of Sex Offender Risk-2 (hereinafter the Vermont Assessment), and as a moderate-to-low risk on the Static-99R [1]. Although defense counsel acknowledged that the Vermont Assessment had not assigned points for the defendant's refusal to participate in treatment, she argued that even with the addition of one point for this factor, the defendant "would only be one point above low on the Vermont Assessment and he would still be on the cusp." The prosecutor opposed the request for a downward departure, pointing out that the Vermont Assessment and the Static-99R were not the assessment instruments relied upon in New York, and that this State instead relied upon the RAI that it was the Board's job to prepare. The prosecutor also noted that "even if one were to give the Vermont Assessment any credence, " the additional point the defendant admitted he should have been scored on that instrument placed him "into the moderate-low range, which is commensurate with the Level 2 sex offense."

         In an order dated February 10, 2016, the Supreme Court designated the defendant a level two sex offender in accordance with his presumptive risk level as assessed by the RAI, thus effectively denying his request for a downward departure.

         The defendant now appeals, contending that the Supreme Court abused its discretion by denying his request for a downward departure. He maintains that a departure was warranted because he was a first-time sexual offender who pleaded guilty and was deemed a low risk by the Static-99R, a reliable actuarial risk assessment instrument. The defendant submits that both the Static-99R and the Vermont Assessment "are relied on throughout the world, " and that the Static-99R "is considered to be extraordinarily accurate." Indeed, the defendant asserts, relying on a 2009 decision of the New York County Supreme Court, that the Static-99R is more accurate than New York's RAI because the Static-99R is frequently updated based upon the latest scientific data about sex offenders. In response, the People maintain that the Supreme Court properly denied the defendant's request for a downward departure. The People contend that since the Static-99R and the Vermont Assessment "are all used for the same purpose - to predict the probability that the offender will re-offend - defendant's advocating for the SORA hearing court to use the Static-99R or the [Vermont Assessment] as a mitigating factor in this case because it resulted in a lower score is simply an attempt to have the SORA hearing court substitute a different, more favorable method to assess the defendant's risk to re-offend than the RAI."

         We begin our analysis by examining New York's statutory scheme for the registration of sex offenders and the legislative intent underlying it. One of the Legislature's chief goals in enacting SORA was to protect the public from "the danger of recidivism posed by sex offenders" (People v Cook, 29 N.Y.3d 121, 125 [internal quotation marks omitted]; see People v Stevens, 91 N.Y.2d 270, 275). SORA seeks to achieve this goal by requiring individuals convicted of sex offenses to register with law enforcement officials, and authorizing information about these individuals to be disseminated to the public (see People v Mingo, 12 N.Y.3d 563, 570). As a first step in implementing the statutory registration scheme, the Legislature directed the establishment of the Board, to be composed of "experts in the field of the behavior and treatment of sex offenders, " and charged the Board with the responsibility of developing "guidelines and procedures to assess the risk of a repeat offense by [a] sex offender and the threat posed to the public safety" (Correction Law § 168-l[1], [5]). The Legislature specified that these guidelines "be based upon, but not limited to, " a prescribed list of factors provided in the statute (Correction Law § 168-l[5]). When the Board drafted the guidelines required by SORA, it created the RAI to be used as a tool to assess an offender's risk level by assigning numerical points for various risk factors, including those prescribed by Correction Law § 168-l(5) (see People v Cook, 29 N.Y.3d at 125). According to the Board, "[a]fter much discussion, " it "opted to create an objective assessment instrument that would provide a risk level combining risk of reoffense and danger posed by a sex offender" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]). The RAI "includes factors related to the offender's current offense, his criminal history, his post-offense behavior (e.g., his conduct while confined for the offense), and his planned release environment" (id.), and calculates an offender's presumptive risk level by adding the points that the offender scores for the risk factors listed in each category (see id.; People v Wyatt, 89 A.D.3d 112, 117). If an offender's total score on the RAI is 70 points or less, the offender is presumptively a level one (low risk) offender (see Guidelines at 3). If the score is more than 70 but less than 110, the offender is presumptively a level two (moderate risk) offender; if 110 or more, the offender is presumptively a level three (high risk) offender (see id.). The offender's risk level determines the amount of information that can be disseminated about the offender to the public, the extent and frequency of the offender's reporting requirements, and the duration of those requirements (see id.).

         However, the risk level calculated by aggregating the points assigned on the RAI is only "presumptive" because "the Board or court may depart from it if special circumstances warrant" (id. at 4; see People v Johnson,11 N.Y.3d 416, 421; People v Wyatt, 89 A.D.3d at 119). Indeed, the Guidelines acknowledge that an objective RAI, "no matter how well designed, will not fully capture the nuances of every case" (Guidelines at 4). Thus, the court has the discretion to depart from the presumptive risk level where "there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not taken into account by the guidelines" (id.; see People v Gillotti,23 N.Y.3d 841, 861; People v Johnson, 11 N.Y.3d at 421). However, "utilization of the risk assessment instrument will generally result in the proper classification in most cases so that departures ...


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