On February 26, 1998, the defendant was charged with the crime of rape in the first degree, in violation of Penal Law ("PL") § 130.50, rape in the second degree, in violation of PL § 130.35(1), assault in the second degree, in violation of PL § 120.05(2), and criminal possession of a weapon, in violation of PL § 265.02(1) Following a trial before the Honorable William Leibovitz, the defendant was convicted of rape in the first degree. The jury returned a not guilty verdict on the charges of assault in the second degree and criminal possession of a weapon in the third degree. He was sentenced on November 2, 1998, to 12 years.

In anticipation of the defendant's release on the sex offense, a hearing was commenced on January 21, 2101, pursuant to §168-n of the Sex Offender Registration Act ("SORA"), to determine the defendant's sex offender's level of risk. The People submitted the SORA Risk Assessment Instrument ("RAI"), the grand jury testimony of Police Officer Gregory Abbott and a witness, Ms. Mitchell, the victim's medical records and the defendant's rap sheet and prison file.

The RAI prepared for the hearing assessed the defendant 130 points and designated him a presumptive Level 3 sex offender. The People contend that the assessment of Level 3 is appropriate.

The court asked the defendant if he was in agreement with the People's calculation of a Level 3 risk for the defendant. When the defendant answered no, the court proceeded to review the scores allotted to each risk factor of the defendant's RAI. The parties agreed on all but four of the Risk Factors; number 1 - use of violence, number 11 - drug or alcohol abuse, number 12 - acceptance of responsibility and number 14 - supervision.

At the request of the defense, the hearing was continued to March 19, 2010, to enable the defense to obtain copies of the defendant's medical records. On March 19, 2010, two sets of medical records were produced in court. The defense was directed to review the records and [*2]determine if they were duplicates.^[FN1] In addition, the defense called Dr. Lawrence A. Siegel, a psychiatrist, to testify in support of the defendant's request for a downward departure.

Dr. Siegel described the type of risk assessment tools used by therapists and researchers to determine recidivism for sex offenders, including the RAI. He discredited the accuracy of the RAI stating that

[i]t was an instrument developed before actuarial

instruments were available and before research on

sex offender recidivism, looking at large groups and

trying to develop a way of looking at factors that led

to an actual percentage of individual who reoffend.

This particular instrument was . . . developed in the

nineties by a group of experts for New York State who

looked at the research and attempted to pull out those

factors relating to recidivism, and they just used their

judgment to weight them and whether or not to include

them, and they developed this instrument, but there is

no validation - - there was no sample developed upon,

nor was there any validation instrument. It was just

cobbled together using factors that research showed

was related to sex offense recidivism and to some

extent, violence but not based upon any sample studies.

Transcript of March 19, 2010 hearing at p. 24.

In addition, the RAI does not take into consideration a defendant's age. Dr. Siegel indicated that as defendants get older their recidivism rate decreases.

Dr. Siegel testified that there are three ways an expert can assess the risk that something will happen, clinical judgment, clinical assessment and actuarial. Transcript of March 19, 2010 hearing at pgs. 24 - 25. He also referred to instruments used to predict recidivism including the Static 99, the Static 99R and the Minnesota Sex Offender Screening tool. Transcript of March 19, 2010 hearing at p. 25. After much testimony regarding the various assessment tools, Dr. Siegel stated that the defendant would fall into a moderate low risk to reoffend and that it was "more likely than not that the defendant would not commit another sex offense within the next ten years. Transcript of March 19, 2010 hearing at p. 29.

When asked about the effect the defendant's 2003 prostrate surgery,^[FN2] reports of erectile dysfunction, his diabetes and colitis would have on the assessment of his recidivism, Dr. Siegel said these conditions would decrease the defendant's life expectancy and thus lower the overall [*3]risk to reoffend. He also testified that, if the description of the defendant's erectile dysfunction was accurate, "it would make it impossible for [him] to insert his penis into the vagina to rape someone [because] . . . he could not obtain an erection." Transcript of March 19, 2010 hearing at pgs 31 - 33.

A SORA proceeding is a civil proceeding to determine the risk of reoffense by a person convicted of a qualifying sex offense and requires that the individual register with law enforcement officials according to the Risk Level determined by the court. People v. Mingo, 12 NY3d 563, 570-71 (2009). The People bear the burden of proving the facts supporting the determination by clear and convincing evidence. Corrections Law §168-n(3). Pursuant to the Board of Examiners of Sex Offenders, Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, ¶ 7 at 5 (2006), points in the RAI "should not be assessed for a factor . . . unless there is clear and convincing evidence of the existence of that factor. The Court of Appeals has held that RAI case summaries, such as the one prepared by the Board of Examiners in this case "meet reliable hearsay' standards for admissibility at SORA proceedings." Mingo. 12 NY3d, supra at 573.

Risk Factor Number 1 - Use of Violence

The RAI, assessed 30 points for Risk Factor Number 1. The case summary report, noted that in the instant offense the defendant "pulled a knife on [the victim] and said "Take your clothes off bitch."" The grand jury minutes of Police Officer Gregory Abbot reveal that a knife was recovered from the apartment and shown to the victim.

The defendant contends that the court should not assess 30 points because the jury acquitted the defendant of the charge of criminal possession of a weapon.

The burden of proof at a trial, beyond a reasonable doubt is greater than the clear and convincing burden of proof at a SORA proceeding.

In People v. Pettigrew, 2010 WL 1286411, Slip Op. 02831, NY (April 6, 2010), the defendant argued that the People had failed to prove by clear and convincing that the defendant was armed with a dangerous instrument for the purpose of classifying him a Level 3. At the SORA hearing, the "[d]efendant specifically argued that the People failed to prove by clear and convincing evidence that the gun he possessed during the rape was loaded and operable; proof that some appellate courts have required in first degree robbery cases based on the "use of a dangerous instrument" theory." The Court rejected the defendant's assertion that points should not be assessed under SORA Risk Factor 1, noting that the RAI case summary which stated that the defendant showed the victim a gun sticking out of his pants and proceeded to tear her pants off and rape her, was sufficient to support a finding that the defendant was armed with a dangerous instrument.

Here, as in Pettigrew, the People have supplied the court with sufficient evidence, the RAI, case summary and grand jury testimony, to support a finding by clear and convincing evidence, that the defendant was armed with a dangerous instrument.

Thus, 30 points were properly assessed for Risk Factor 1.

Risk Factor 11 - Drug or Alcohol Use

The RAI assessed 15 points for drug and alcohol use, pursuant to Risk Factor 11. The case summary report notes that the defendant "has a history of substance abuse that includes both alcohol and crack cocaine and he has refused to address the problem by participating in a [*4]substance abuse program." The defendant was convicted of criminal possession of a controlled substance in the seventh degree in 1995 and again in 1996. The Department of Corrections records relating to the defendant also indicate that he "reports a history of alcohol abuse for which he was hospitalized." Transcript of the January 21, 2010 hearing at p. 12.

The People contend that the 15 point assessment is appropriate based upon the defendant's prior drug convictions and admission of alcohol abuse.

The defense argues that the People have failed to meet their burden that the defendant actually has a drug problem.

The First Department has held "two drug convictions which occurred within two years of one another and within 5 years of the classification hearing" sufficient to support an assessment of 15 points for drug and alcohol use, pursuant to Risk Factor 11. People v. Wilkens, 33 AD3d 399 (1st Dept. 2006). Although the 1995 and 1996 convictions occurred more than five years before his 2010 classification hearing, the defendant has been incarcerated since 1998. The defendant argues that drugs are accessible in prison and he has never tested positive while incarcerated. However, "abstinence . . . while incarcerated [is] not necessarily predictive of [a defendant's] behavior when no longer under supervision." People v. Gonzalez. 48 AD3d 284, 285 (1st Dept. 2008).

Thus, 15 points were properly assessed for Risk Factor 11.

Risk Factor Number 12 - Acceptance of Responsibility/refused or expelled from treatment

The RAI assessed 15 points for Acceptance of Responsibility, specifically acceptance of responsibility/refused or expelled from treatment, Risk Factor 12. The case summary states that the defendant "said he was innocent of the crime and continued to deny the crime while confined in NYSDOCS. He refused to participate in a sex offender counseling program. "

Reliance on the RAI and case summary by the People to support this assessment is sufficient. People v. Pettigrew, 2010 WL 1286411, Slip Op. 02831, NY (April 6, 2010).

Thus, 15 points were properly assessed for Risk Factor 12.

Risk Factor Number 14 - Supervision

The RAI assessed 15 points for Supervision. At the January 21, 2010 hearing the defense argued that "[i]t is not Mr. Powell's fault or responsibility or he had not choice whether he is being released with or without supervision" and should not be assessed the 15 points. Transcript of the January 21, 2010 hearing at p. 22. At the March 19, 2010 hearing the defense added that now that the defendant is facing an Article 10 proceeding. Should the jury find that he has a mental disease or defect that would substantially cause him to reoffend and that he would reoffend, he would be in a position of some sort of supervision. Should the Court assess the 15 points, the defense stated that they would seek to revisit the SORA finding.^[FN3] Transcript of the March 19, 2010 hearing at pgs. 3 - 5. The First Department, in People v. Diaz, 61 AD3d 465 (1st Dept. 2009), held that even though the lack of supervised release "was a matter beyond the [*5]defendant's control" the lower court properly assessed points.

Thus, 15 points were properly assessed for Risk Factor 14.

Request for a Downward Departure

The defendant seeks a downward departure based upon (i) Dr. Siegel's testimony regarding the defendant's age and medical condition and (ii) "the supervision aspect . . . He is not being released into the community at this point any time soon. And he may indeed be subject to either inpatient treatment or intense supervision in the community." Transcript of March 19, 2010 hearing at pgs. 56 - 57.

This court was not persuaded by Dr. Siegel's testimony that "it is more likely than not that the defendant will reoffend within in the next ten years." The defendant has a history of sex offenses beginning in 1967, when he was 21 years old, culminating in the underlying offense that occurred in 1998. The prior felony convictions for sex offenses makes the defendant a presumptive Level 3 sex offender.

Although the court is mindful of the defendant's age and medical condition, neither factor moves the court to downwardly depart from the Level 3 assessment.For the reasons set forth above, this court finds the defendant's total risk factor score to be 130, placing the defendant at a Level 3. The court also finds the defendant to be a presumptive Level 3.

The forgoing is the decision and order of this court.

Dated:April 8, 2010

New York, New York

________________________

Laura A. Ward

Acting Supreme Court Justice