Having been convicted of multiple counts of rape and other related offenses all perpetrated upon his defenseless biological daughter, Elizabeth Falcon, commencing when the child was but 10 years old in 1983 and continuing in a deviant and systematic pattern of sexual abuse until the authorities were finally notified in 1987, the defendant/petitioner was subsequently assessed to be a level-two sex offender ^[FN1] by this Court, after a Doe v Pataki (3 F. Supp. 2d 456) SORA re-hearing held on November 4, 2005. The petitioner has now moved, pursuant to Correction Law §168-0(2), for an order modifying his level of notification from level [*2]two to level one.

The People have submitted an affirmation in opposition; in addition, the Court is in receipt of an updated recommendation from the State of New York Board of Examiners of Sex Offenders which recommends against any reduction in sex offender level because of Mr. Falcone's continued failure to accept responsibility for his actions. By affirmation, dated April 24, 2012, counsel for the petitioner submitted a reply to the People's and the Board's opposition to this application. On May 10, 2012, both sides appeared before this Court for the purpose of affording the petitioner his right to be heard, pursuant to subd. 4 of Correction Law 168-0. Counsel for the petitioner argued in his behalf and submitted a set of individual and corporate tax returns for the years 2007 - 2010. After the petitioner briefly addressed the Court, the People elected to rely upon their pleadings. The Court then reserved decision.

After a bench trial before the Hon. Kenneth N. Browne, at which the victim testified about having had sexual intercourse with her father on multiple occasions and a doctor testified that, in her opinion, the daughter had been sexually abused, the petitioner was found guilty of one count of Rape in the First Degree, two counts of Rape in the Second Degree, two counts of Rape in the Third Degree, five counts of Incest, and five counts of Endangering the Welfare of a Child. On February 15, 1989, the petitioner was sentenced to indeterminate prison terms of 3-9 years for the first degree rape conviction, 2-6 years for the second degree rape convictions, 1-3 years for the third degree rape and incest convictions, and 1 year for the endangering the welfare of a child conviction; all sentences were imposed to run concurrently with each other.

The judgement of conviction was affirmed by the Appellate Division - Second Department on July 8, 1991 (175 AD2d 178) and leave to appeal to the Court of Appeals was denied on November 21, 1991 (78 NY2d 1127 (Alexander, J.)). On or about January 17, 1995, the petitioner was conditionally released from prison to the supervision of the New York State Division of Parole. On January 17, 1998, the petitioner was discharged from Parole.

At the SORA risk assessment hearing held in November, 2005, the Court was presented with a Risk Assessment Instrument ("RAI") prepared by the People which assessed the petitioner to be a level three Sexually Violent Felony Offender, and contained a total risk factor score of 125 points. Under Risk Factor 13: "Conduct While Confined," the petitioner had been assessed 20 points because of a sexual misconduct infraction that had occurred while he was imprisoned at the Sing Sing Correctional Facility. However, due to a flood (the so-called "Act of God") at the prison, the disciplinary records needed to document this infraction were destroyed. As a result, the Court was constrained to deduct 20 points from the petitioner's total risk factor score, thereby reducing his final risk factor score to 105 points and making the petitioner a level two sex offender.

In support of his petition to modify his sex offender level, the petitioner has relied upon [*3]the following six grounds:

1) That the offenses for which he must register occurred more than 24 years ago, and that he had not been previously convicted of crime, sexual or otherwise, and that since being released into the community he has led a lawful life;

2) That while on parole, the petitioner underwent sex offender treatment and made therapeutic progress, including the expression of remorse and concern towards his family;

3) That he was recently assessed by a clinical and forensic psychologist , Kostas A. Katsavdakis, PhD, P.C., who determined that he presents a low risk of sexual re-offense;

4) That since 1995 he has been in a "stable and loving relationship" with a woman named Lydia Torrens, whom he refers to as his common-law wife, and with whom he has two daughters, ages 12 and 14;

5) That since his release from prison the petitioner has run his own business, "Lift International Equipment;" and,

6) That the petitioner is now 55 years old, an age after which the risk of sexual recidivism declines dramatically, according to "empirical research."

In determining the validity of the petitioner's motion to modify his level of notification from 2 to 1, the Court's analysis is guided by the express language of Correction Law §168-0(2) which, after requiring that the "petition shall set forth the level of notification sought, together with the reasons for seeking such determination," places upon the sex offender "the burden of proving the facts supporting the requested modification by clear and convincing evidence." "The clear and convincing evidence' standard [is] an intermediate standard' between the high standard of beyond a reasonable doubt' used in criminal proceedings and fair preponderance' used in ordinary civil proceedings (People v Wyatt, 89 AD3d 112, 126-127, lv to app den 18 NY3d 803; citing Matter of New York City Dept. Of Social Servs. V Oscar C., 192 AD2d 280, 283-284). This legislative imposed higher standard of proof applies in the "context of proceedings commenced by the sex offender subsequent to the initial risk determination" and does "not govern a sex offender's application for a downward departure at the initial determination proceeding (People v Hyatt, supra, 125), where the "initial burden of establishing an appropriate mitigating factor" is the preponderance standard (People v Hyatt, supra, 128).

Therefore, this petitioner must establish by "clear and convincing evidence that there are mitigating factors of a kind or to a degree not otherwise taken into account' by the guidelines" (People v Perry , 56 AD3d 448, lv to app den 12 NY3d 701; SORA: Risk Assessment Guidelines & Commentary, at 4 [2006 ed.]; see People v Taylor, 47 AD3d 907; People v Hines, 24 AD2d 524; People v Guaman, 8 AD3d, 545).

The Court will now address the grounds raised by Mr. Falcon in support of his Petition:

1) It is true that since the petitioner's release from prison in 1995, over 17 years ago, he has appeared to have led a law abiding life in the community with his new family, there being no record of subsequent arrests, sexual or otherwise, and/or parole violations. In People v Abdullah, 31 AD3d 515 (2nd Dept. 2006), the Appellate Division reiterated the well-settled maxim that "the RAI will generally result in the proper classification in most cases so that departures will be the exception not rule" (Sex Offender Registration Act: Risk Assessment Guidelines & [*4]Commentary, at 4 (1997 ed.); see People v Ventura, 24 AD3d 527, lv denied 6 NY3d 710; People v Dexter, 21 AD3d 403) (but) "a court is empowered to exercise its . . . discretion & depart from the presumptive risk level based upon facts in the record ( see Matter of Vandover v Czajka, 279 AD2d 945). A departure from the presumptive risk level is warranted where there exists any aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the Guidelines" . . . "There must be clear and convincing evidence of the existence of a special circumstance to warrant a departure from the risk level" (People v Abdullah, supra, 516; see People v Inghilleri, 21 AD3d 404; People v Dexter, supra; People v Guaman, supra).

The Abdullah Court concluded that there was "convincing evidence that the defendant has been rehabilitated and that for the past 17 years he has led an exemplary life" (People v Abdullah, supra). The Second Department further found that "(t)his mitigating factor was not taken into account by the Guidelines or the RAI, nor was it given sufficient consideration by the court" (People v Abdullah, supra).

In its determination of this defendant's petition this Court will, of course, give sufficient consideration to the mitigating facts of the petitioner's apparent lawful life during the past 17 years. However, that factor, standing alone, is not sufficient to mandate a reduction in notification level. It shall be considered and given appropriate weight in the context of all the facts and circumstances developed during this proceeding. Moreover, this Court observes that the Abdullah Court spoke in terms of Mr. Abdullah being "rehabilitated," in addition to having led an exemplary life. The concept of successful rehabilitation and Mr. Falcon is, at best, murky, as will be set forth below.

This Court does not find that the fact that the petitioner established and continues to maintain his own business, and that he is involved in a stable relationship with Ms. Torrens, to be evidence of mitigating factors or special circumstances warranting a downward departure from the current level two notification level. While being a "productive member of society" and being involved in a "supportive relationship" (see, Defendant's Memorandum of Law, pg. 6, dated November, 2011) may have "positive" influence on sex offenders, the court is not overly impressed with the petitioner's conclusory contentions that these factors will subsequently contribute to a lower rate of recidivism.

So, too, the Court gives little weight to the fact that the defendant has now attained the age of 55. The petitioner is at the lower cusp of the age/recidivism continuum, and there is no evidence that because of his age or any other physical disability or ailment that his sexual libido has been diminished. In fact, Ms. Torrens, when asked about her sexual activity with the defendant replied, "We just (sic) very sexually active, we have needs" (see Defendant's Ex. A, Forensic Evaluator, Katsavdakis, pg. 8).

The petitioner asserts that while on parole he underwent sex offender treatment and made therapeutic progress. In support of that contention, he has submitted an unsigned and undated treatment report by someone identified as R. Skadegaard, Ed. D from Metropolitan Center. Although R. Skadegaard opines that Mr. Falcon has made "positive therapeutic growth and, as stated above, "expresses a great deal of genuine remorse and concern towards his family."

The Court notes that: [*5]

1) the report was prepared while the then defendant was still on parole, prior to January 17, 1998, at least 14 years ago;

2) that despite this group treatment , the petitioner continues to deny that he sexually abused his daughter;

3) that, in the words of the Board of Examiners of Sex Offenders (See, updated Report, January 9, 2012), "any treatment gains he may have in 1995 have been lost;" and,

4) that the petitioner did not participate in any sex offender treatment while in prison.

Pursuant to Correction Law §168-l(5)(c), the guidelines to be developed by the Board of Examiners of Sex Offenders to assess the risk of a repeat offense by such sex offenders and the threat posed to the public safety, specifically provide for "conditions of release that minimize risk or re-offense, including but not limited to whether the sex offender is under supervision; receiving counseling, therapy or treatment; or residing in a home situation that provides guidance and supervision." This petitioner chose to avoid any counseling while in prison, presumably only attended a short-lived group session at the direction of Parole, and has eschewed any form of counseling thereafter, that is, during the preceding 14 or more years.

In the Court's view, the crux of Mr. Falcon's petition rests upon the opinion expressed by the forensic evaluator, Dr. Kostas A. Katsavdakis, a licensed psychologist, who examined the defendant for a total of 4 ¾ hours over 4 sessions, reviewed voluminous records, administered three tests: SVR-20, Static-99R and Hare Psychopathy Checklist - 2nd Ed. (PCL-R), and interviewed an ex-wife, the petitioner's current partner and one of his biological daughters named Michelle.

Summarizing his findings, Dr. Katsavdakis concluded that the petitioner remains a low risk for a sexual offense in the community.Nevertheless, Dr. Katsavdakis candidly alerted this Court to the following dynamic and static factors that increase the petitioner's risk for a sexual offense in the community:

1) Mr. Falcon engaged in sexual conduct with Elizabeth during her pre-pubescent to pubescent years of 1983-1987. His sexual contact included vaginal and anal penetration in the home, at times, with other children present in another room.

2) Mr. Falcon's sexual contact was repeatedly conducted through the use of coercion and threats.

3) Mr. Falcon has not accepted responsibility for the instant offense.

This Court holds that the mitigating factors cited by the petitioner (even after giving appropriate weight to 17 years of non-involvement with the criminal justice system) are unpersuasive and are, in any event, outweighed by the seriousness of the underlying and repeated sex crimes against a very young and defenseless child, the petitioner's own daughter (see, People v Ward, 83 AD3d 561, lv to app den 17 NY3d 707).

Accordingly, the petitioner's motion for a downward modification of his sex offender risk level is denied.

The foregoing constitutes the Opinion and Decision of the Court.

Order signed herewith.

The Clerk is directed to forward copies of the Memorandum Decision and the accompanying Order to the attorney for the petitioner and to the District Attorney.

____________________________

Robert Charles Kohm

J.S.C.