THE PEOPLE OF STATE OF NEW YORK, Respondent, v RAHIEM WYATT, Appellant.
Supreme Court, Appellate Division, Second Department, New York
October 18, 2011
931 N.Y.S.2d 85 | 89 A.D.3d 112
APPEARANCES OF COUNSEL
Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove, Morgan J. Dennehy and Marissa Prianti of counsel), for respondent.
OPINION OF THE COURT
ANGIOLILLO, J.P.
The defendant, Rahiem Wyatt, challenges a determination of the Supreme Court, Kings County, designating him a risk level two sex offender pursuant to
Factual and Procedural History
In a multiple-count indictment, the defendant was charged with committing various sex crimes against a single complainant between December 2005 and March 2006, when the ages of the defendant and the complainant were 27 and 14, respectively. On November 3, 2006, pursuant to a negotiated disposition, the defendant pleaded guilty to one count of attempted rape in the second degree (see
On March 24, 2009, prior to the maximum expiration date on the defendant’s period of incarceration, the Board of Examiners of Sex Offenders (hereinafter the Board) prepared a Risk Assessment Instrument (hereinafter the RAI) containing the Board’s recommendation to the Supreme Court regarding the defendant’s appropriate risk level designation under SORA. In the RAI, the Board assessed points under six risk factors, as follows: 25 points under risk factor 2 (“Sexual intercourse, deviate sexual intercourse or aggravated sexual abuse”); 20 points under risk factor 4 (“Continuing course of sexual misconduct”); 20 points under risk factor 5 (“Age of victim 11 through 16”); 30 points under risk factor 9 (“Prior violent felony”); 10 points under risk factor 10 (“Recency of prior offense — Less than three years”); and 10 points under risk factor 12 (“Not accepted responsibility”). The “Total Risk Factor Score” of 115 points placed the defendant at risk level three. The applicable point ranges in the scoring system are: 0 to 70, level one (low); 75 to 105, level two (moderate); and 110 to 300, level three (high). The Board recommended a downward departure from risk level three to risk level two, noting that, despite the defendant’s criminal record, the instant offense was his only conviction for a sex offense and, although the victim was only 14 years of age, the acts were not the result of forcible compulsion.
At the SORA determination proceeding, the People submitted documentary evidence in support of the Board’s assessment of 115 points and contended that the defendant should be designated a risk level three sex offender; the People opposed a
The Supreme Court did not pass upon the merits of the dispute regarding the sufficiency of the evidence in support of the 10 points assessed under risk factor 12, but noted that, even if the 10 points were removed from the RAI, the resulting score of 105 points placed the defendant at risk level two, and the Board was not opposed to a risk level two designation. Accordingly, the Supreme Court designated the defendant a risk level two sex offender and, in effect, denied his application for a downward departure to risk level one.
On appeal, the defendant contends that the Supreme Court failed to give him the benefit of the Board’s recommendation for a downward departure. He contends that his presumptive risk level after the subtraction of the disputed 10 points is risk level two and, thus, the Board’s recommendation for a downward departure should have been applied to depart downward from level two to level one. In addition, he advances other alleged mitigating factors to support a downward departure to level one, including the fact that he was convicted of an attempt only, the offense was “consensual” and statutory, and the violent felonies in his record did not involve “actual violence,” but were convictions for weapons possession.
We turn now to an examination of the SORA statutes, the Board’s Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006 ed.) (hereinafter the Guidelines), and case law, to determine the appropriate standard for evaluation of the defendant’s contentions.
SORA Statutes
The Board, which consists of members who are “experts in the field of the behavior and treatment of sex offenders,” is charged with developing “guidelines and procedures to assess
The SORA determination proceeding is “civil in nature” (People v Mingo, 12 NY3d at 571). By statute, the district attorney bears an evidentiary burden: “The state shall appear by the district attorney, or his or her designee, who shall bear the
Accordingly, pursuant to the statutory scheme applicable to the initial risk level determination proceeding, the SORA court must determine whether the People have met their burden of proving the facts in support of that risk level by clear and convincing evidence. On appeal, where a sex offender disputes the point assessment under one or more risk factors in the RAI, this Court must determine whether the points assessed are supported by the evidence presented at the hearing (see e.g. People v Pettigrew, 14 NY3d 406, 408-409 [2010]; People v Crum, 81 AD3d 619 [2011]). Where the Supreme Court has failed to set forth findings of fact and conclusions of law as mandated by statute (see
On appeal, the defendant does not raise any issue concerning the sufficiency of the evidence in support of the point assessment under any of the risk factors in the RAI. The sole question
The Board’s Commentary Regarding Departures
SORA does not expressly provide for downward and upward departures from the risk level calculated by aggregating the points under applicable risk factors in the RAI. Rather, all provisions regarding departures appear in the commentary to the Guidelines:
“The risk level calculated from aggregating the risk factors and from applying the overrides is ‘presumptive’ because the Board or court may depart from it if special circumstances warrant. The ability to depart is premised on a recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Not to allow for departures would, therefore, deprive the Board or a court of the ability to exercise sound judgment and to apply its expertise to the offender. Of course, if there was to be a departure in every case, the objective instrument would be of minimal value. The expectation is that the instrument will result in the proper classification in most cases so that departures will be the exception —not the rule. . . .
“Generally, the Board or a court may not depart from the presumptive risk level unless it concludes that there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines . . . Circumstances that may warrant a departure cannot, by their very nature, be comprehensively listed in advance. Departures may be upward . . . or downward.” (Guidelines at 4-5 [emphasis added].)
The departure concept has become a common aspect of SORA litigation, and we are frequently called upon to review orders granting or denying departure applications. The Court of Appeals has observed that “[w]hile departures from the Board’s recommendations are of course the exception, not the rule, the possibility of such departures has been generally recognized” (People v Johnson, 11 NY3d at 421). “[T]he level suggested by the RAI is merely presumptive and a SORA court possesses the
The term “special circumstances” in the commentary to the Guidelines, taken in context, is a shorthand version of the phrase “aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Guidelines at 4). While recognizing that special circumstances “cannot, by their very nature, be comprehensively listed in advance” (id.), the Board nevertheless included in the Guidelines a few suggested factors which may warrant a departure. The Board’s examples of aggravating factors are: (1) clear and convincing evidence of the offender’s commission of a sex crime which does not appear in the offender’s criminal record (id. at 7); (2) under-assessment of the offender’s risk to public safety by a score of zero under risk factor 2 for sexual contact where the offender actually intended to rape the victim (id. at 9); and (3) the offender’s commission of concurrent or subsequent crimes which are not adequately reflected in the offender’s criminal record under risk factor 9 (id. at 14). Examples of mitigating factors listed in the commentary to the Guidelines are: (1) the offender was an accessory to the crime and the scoring of 25 points for risk factor 2 (sexual contact), applying traditional principles of accessorial liability, results in an over-assessment of the offender’s risk to public safety (id. at 7); (2) the victim’s lack of consent is due only to inability to consent by virtue of age, and the scoring of 25 points for risk factor 2 results in an over-assessment of the offender’s risk to public safety (id. at 9); (3) the assessment of points under risk factor 9 for a prior conviction of endangering the welfare of a child is based upon an offense which did not involve sexual misconduct (id. at 14); and (4) the offender exhibited an “exceptional” response to a sex offender treatment program (id. at 17).
Manifestly, the examples of special circumstances suggested in the Guidelines reflect the Board’s mandate to develop guidelines and procedures assessing the sex offender’s “risk of a repeat offense” and “threat posed to the public safety” (
As the Guidelines make clear, where an aggravating or mitigating factor is shown to exist, the Board or a court “may” choose to depart if the factor indicates that the point score on the RAI has resulted in an over- or under-assessment of the offender’s actual risk to public safety (Guidelines at 7, 9, 14). The Guidelines equally make clear that departures from the presumptive risk level should be the exception, not the rule (id. at 4). Thus, upon identifying, as a matter of law, an appropriate aggravating or mitigating factor and proffering sufficient evidence of facts supporting its existence, the proponent of the departure is not automatically entitled to the relief sought. Rather, upon such a showing, the court is authorized to exercise its sound discretion in determining whether, under all the circumstances of the case, the requested departure should be granted or denied. Accordingly, a sufficient evidentiary showing of facts establishing the existence of an appropriate aggravating or mitigating factor is the threshold condition triggering the court’s discretionary authority to depart from the presumptive risk level.
We turn now to consider the appropriate evidentiary burden that must be borne by the proponent of an upward or downward departure to establish the facts in support of the propounded aggravating or mitigating factor.
As noted, at the initial “determination proceeding,” the district attorney bears “the burden of proving the facts supporting the determinations sought by clear and convincing evidence” (
Our decisions in appeals reviewing orders which grant or deny departures from the presumptive risk level frequently include general reference to the clear and convincing evidence standard, without distinguishing between upward and downward departures. For example, in People v Guaman (8 AD3d 545 [2004]), where we reviewed the SORA court’s denial of a defendant’s application for downward departure, we held that “[t]here must exist clear and convincing evidence of the existence of special circumstance to warrant an upward or downward departure,” and concluded that the factors alleged by the defendant in mitigation did not warrant a departure. In People v White (25 AD3d 677 [2006]), where we reviewed the SORA court’s grant of the People’s application for an upward departure, we held that “a departure is warranted where clear and convincing evidence demonstrates the existence of an aggravating or mitigating factor that in kind or degree is not otherwise taken into account by the guidelines.” To the extent that these cases, and those with similar language, hold that the ultimate risk level designation must be supported by clear and convincing evidence, they correctly reflect the statutory mandate which imposes this burden of proof on the district attorney.
“The statute is quite clear: the Board’s duty is to ‘make a recommendation to the sentencing court’ (
Correction Law § 168-l [6] ) and the court, applyinga clear and convincing evidence standard, is to make its determination after considering that recommendation, and any other materials properly before it ( Correction Law § 168-n [3] )” (People v Johnson, 11 NY3d at 421).
In addition, the language in some of our cases goes a step further to suggest that, not only must the ultimate determination be supported by clear and convincing evidence, but also, the proponent of a departure has the burden of adducing clear and convincing evidence of the facts in support of the aggravating or mitigating factor which is the threshold condition to the SORA court’s exercise of discretion. Thus, for example, we have noted that the “prosecution presented clear and convincing evidence to support the upward departure” (People v Forney, 28 AD3d 446, 446 [2006]), or the “defendant failed to show by clear and convincing evidence that special circumstances existed warranting a downward departure from his presumptive risk level . . . designation” (People v Burgess, 80 AD3d 589 [2011]). Where the case involves an application by the People for an upward departure, this evidentiary burden is mandated by statute, since the district attorney bears the burden of proving the facts supporting the determinations sought by clear and convincing evidence (see
In sum, with respect to upward departures, the threshold condition triggering the court’s exercise of discretion is twofold: (1) as a matter of law, the cited aggravating factor must tend to establish a higher likelihood of reoffense or danger to the community and be of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) the People must prove the facts in support of the aggravating factor by clear and convincing evidence. Upon satisfaction of that threshold condition, the SORA court may, in its discretion, choose to upwardly depart or make no change. Where the threshold is not met, however, the SORA court may not upwardly depart and must impose the presumptive risk level. In the latter situation, the SORA court has no authority to exercise its discretion to depart upward because SORA requires the ultimate risk designation to be supported by clear and convincing evidence.
By contrast, the issue of downward departure is raised in a different context. Typically, the sex offender makes the applica-tion for a downward departure at the initial determination proceeding and, in some cases, that application is supported by a recommendation of the Board. In either event, the application
Like any movant in a civil proceeding, a sex offender making an application for a downward departure bears the burden of establishing his or her entitlement to relief (see People v Sivells, 83 AD3d 1027 [2011]; People v Arotin, 19 AD3d 845, 847 [2005] [the party urging the court to depart from a Board recommendation supported by sufficient evidence bears the burden of establishing special circumstances]). The threshold condition to the SORA court’s exercise of discretion involves the twofold inquiry whether (1), as a matter of law, the cited mitigating factor tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines, and (2) the sex offender has established the facts in support of that mitigating factor. With regard to the second prong of this showing, the question remains whether the sex offender bears the burden of establishing the facts in support of the mitigating factor by clear and convincing evidence. We find no basis in SORA or the Guidelines for imposing that evidentiary burden.
The statutes governing the initial determination proceeding, while permitting the sex offender to present evidence, place the burden of proving the facts in support of the determination on the People, not the sex offender (see
On its face, the statutory scheme plainly distinguishes the procedures applicable to an initial determination proceeding and those applicable to a subsequent modification proceeding. The procedures in
For example, although a district attorney’s petition for upward modification pursuant to
The Court of Appeals has also observed the distinction between the initial determination proceeding and a subsequent modification proceeding in People v David W. (95 NY2d 130 [2000]), which involved a challenge to the constitutionality of SORA prior to certain amendments which took effect January 1, 2000 (see L 1999, ch 453, §§ 6, 16, 29). In holding that the previous version of SORA violated the sex offender’s constitutional right to procedural due process, the Court rejected the People’s argument that the procedures governing modification petitions pursuant to
“In using the words ‘relieved’ and ‘further’ the Legislature indicated that this section [
Correction Law § 168-o ] was to be used after the SORA risk level determination had been in place along with all the adverse consequences of that risk level imposed on the sex offender. The ability to make future modifications to the duty to register differs from the procedures that go into making the original risk level determination . . . The right to petition the sentencing court is not a substitute for an initial due process hearing because the defendant bears the burden of proving by ‘clear and convincing’ evidence that his risk level should be modified (Correction Law § 168-o [2] ). Due process requires that the State bear the burden of proving, at some meaningful time, that a defendant deserves the classification assigned” (People v David W., 95 NY2d at 140).
Thus, to impose a burden by clear and convincing evidence on a sex offender at the initial SORA risk level determination proceeding is inconsistent with the People’s statutory burden of proof by clear and convincing evidence, which was added by statutory amendments effective in 2000.
“[T]he ‘clear and convincing evidence’ standard [is] an ‘intermediate standard’ between the high standard of ‘beyond a reasonable doubt’ used in criminal proceedings and ‘fair preponder-ance’
The same consideration is inapplicable to a sex offender’s request for a downward departure made during the initial determination proceeding. Rather, the countervailing interests of the State are relevant to the question of the appropriate evidentiary burden to place on the sex offender. Where both the State and private interests involved are “weighty and compelling,” a balance must be struck by assessing the risk of error created by the subject standard of proof (Matter of Lee TT. v Dowling, 87 NY2d 699, 711 [1996]). Thus, a sex offender’s private interest in avoiding the stigma of a higher risk level designation is balanced against the State’s interests in properly assessing the risk level to aid law enforcement, prevent sexual victimization, and protect the public, which were the legislative purposes in enacting SORA (see L 1995, ch 192, § 1). With respect to a sex offender’s application for a downward departure, the lower burden of a preponderance of the evidence does not create a substantial likelihood that an improper risk level designation will result in derogation of the State’s interests. A sex offender’s successful showing by a preponderance of the evidence of facts in support of an appropriate mitigating factor does not automatically result in the relief requested, but merely opens the door to the SORA court’s exercise of its sound discretion upon further examination of all relevant circumstances.
Since there is no express mandate in SORA, the Guidelines, or the commentary for the imposition of a clear and convincing evidence burden upon the sex offender in the context of an application for a downward departure, we hold that the
Analysis of the Defendant’s Downward Departure Application
Here, the defendant’s first contention is that the SORA court did not give him the full benefit of the Board’s recommendation for a downward departure. The Board assessed a total point score within presumptive risk level three, and recommended a downward departure to risk level two. The Supreme Court did not grant the downward departure from risk level three to risk level two, but rather, in effect, removed 10 points from the total number of points assessed in the RAI, resulting in a score within presumptive risk level two. The defendant contends that, therefore, the Supreme Court should have honored the Board’s recommendation by departing downward from risk level two to risk level one.
Contrary to the defendant’s contention, the mere fact that the Board recommended a downward departure to risk level two did not require the Supreme Court to grant a downward departure to risk level one. The Board’s recommendation to depart from risk level three to risk level two was premised upon the inclusion of the disputed 10 points. The defendant’s effort to divorce the context of the recommendation from the recommendation itself has left him with the bare assertion that a court is obliged to honor the Board’s recommendation to depart irrespective of the reasoning that went into the recommendation. Although the factors cited by the Board in support of a recommendation to downwardly depart may be ap-
The defendant next contends that a downward departure to risk level one was warranted because the crime of which he was convicted was attempted rape in the second degree. This contention is unpreserved for appellate review and, in any event, is without merit. As a matter of a law, this is not a factor of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines. The People presented clear and convincing evidence of the defendant’s sexual contact with the complainant on more than one occasion, and that evidence is taken into account under risk factors 2 and 4. The fact that the defendant was allowed to plead guilty to an attempt crime notwithstanding this evidence of actual sexual contact is a result of the plea bargaining process, and it is proper to assess points on the RAI based on clear and convincing evidence of sexual contact even if the ultimate crime to which the defendant pleaded was an attempt crime (see People v Goodwin, 49 AD3d 619, 620 [2008]). Accordingly, the defendant’s conviction of attempted rape in the second degree is not an appropriate mitigating factor related to his danger to the community or risk of reoffense.
Next, the defendant contends that the Supreme Court should have departed downward because the offense was “consensual” and statutory. A relevant mitigating factor is expressly set forth in the Guidelines with regard to risk factor 2 (sexual intercourse), which provides that “[t]he Board or a court may choose to depart downward in an appropriate case and in those instances where (i) the victim’s lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points in this category results in an over-assessment of the offender’s risk to public safety” (Guidelines at 9). Notably, this mitigating factor has two components. Here, the defendant established, by a preponderance of the evidence, that the first part of this mitigating factor applies to him by adducing evidence that the only reason for the complainant’s lack of consent was her legal inability to consent due to her age. However, the defendant failed to adduce any additional facts in support of the second prong of the factor to establish by a preponderance of the evidence that the scoring of 25 points under risk factor 2 resulted in the over-assessment of his risk to public safety.
Finally, the defendant contends in mitigation that his past convictions for weapons possession crimes did not involve “actual violence.” This contention is unpreserved for appellate review and, in any event, is without merit. As a matter of law, this is not a mitigating factor of a kind or to a degree not otherwise taken into account by the Guidelines. The defendant does not dispute that his previous convictions of criminal pos-session
In sum, as a matter of law, all but one of the alleged mitigating factors cited by the defendant were not of a kind or to a degree otherwise not adequately taken into account by the Guidelines. With respect to the sole appropriate mitigating factor cited by the defendant, he failed to establish facts in support of its existence by a preponderance of the evidence. Thus, the defendant failed to establish the threshold condition for the Supreme Court’s exercise of discretion. Accordingly, a downward departure from presumptive risk level two to risk level one was not warranted, and the Supreme Court properly, in effect, denied the defendant’s application (see People v Brown, 85 AD3d 750 [2011], lv denied 17 NY3d 708 [2011]; People v Mendez, 79 AD3d 834, 835 [2010]; People v Johnson, 77 AD3d 897 [2010]).
The order is affirmed.
HALL, ROMAN and COHEN, JJ., concur.
Ordered that the order is affirmed, without costs or disbursements.