Supreme Court, Queens County, August 1, 2019

Richard A. Brown, District Attorney, Kew Gardens (Marilyn Filingeri of counsel), for plaintiff.

Marc Laykind, Franklin Square, for defendant.

This matter was forwarded to this court for a judicial determination of defendant's duration of registration and level of notification pursuant to the Sex Offender Registration Act (hereinafter SORA) (Correction Law § 168-n).

On December 10, 2002, the defendant was arrested and charged with rape in the first degree (Penal Law § 130.35 [1]), robbery in the first degree (Penal Law § 160.15 [3]), burglary in the first degree (Penal Law § 140.30 [3]), sexual abuse in the first degree (Penal Law § 130.65 [1]), and unlawful imprisonment in the first degree (Penal Law § 135.10). On November 14, 2003, the defendant pleaded guilty to first-degree rape. The court sentenced him to an indeterminate term of 5 to 15 years. At the time of his plea, he was already serving an indeterminate sentence of 3 to 9 years for a conviction for attempted burglary in the first degree (Penal Law §§ 110.00, 140.30 [3]) arising from a guilty plea he entered on December 18, 1995.

This court is in receipt of the risk assessment recommendation from the Board of Examiners of Sex Offenders which recommends that the defendant be designated a level three sex offender.

At the SORA hearing held on July 15, 2019, the defendant contested the Board's assessments with respect to two risk factors.{**65 Misc 3d at 218} First, he argued he should not be assessed 15 points under risk factor 9 for having a prior criminal history consisting of a non-violent felony because the People had failed to establish that his out-of-state convictions were equivalent to New York felonies. The defendant also contended that the People had failed to establish by clear and convincing evidence that he should be assessed 20 points under risk factor 13 for unsatisfactory behavior, including sexual misconduct, while confined. The People maintained that they presented clear and convincing evidence with respect to both factors.

The Court of Appeals stated in People v Gillotti (23 NY3d 841, 852 [2014]):

"Under SORA, the Board 'shall develop 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]). The guidelines 'shall be based upon,' among other things, 'criminal history factors to be considered in determining risk, including' the 'relationship between such sex offender and the victim' (Correction Law § 168-l [5] [b] [i]). Based on the guidelines, the Board must make a 'recommendation' regarding the offender's risk level classification (Correction Law § 168-l [6]). '[A]pplying the guidelines,' a reviewing court at a SORA hearing must determine the offender's risk level classification by either accepting the Board's recommendation or rejecting that recommendation in favor of a different risk level classification supported by the evidence presented at the hearing (Correction Law § 168-n [2], [3])."

1. Use of Violence

The parties agree with the Board's recommendation that 30 points should be assessed for this factor.

2. Sexual Contact with Victim

The parties agree with the Board's recommendation that 25 points should be assessed for this factor.

3. Number of Victims

The parties agree with the Board's recommendation that 0 points should be assessed for this factor.{**65 Misc 3d at 219}

4. Duration of Offense Conduct with Victim

The parties agree with the Board's recommendation that 0 points should be assessed for this factor.

5. Age of Victim

The parties agree with the Board's recommendation that 0 points should be assessed for this factor.

6. Other Victim Characteristics

The parties agree with the Board's recommendation that 0 points should be assessed for this factor.

7. Relationship with Victim

The parties agree with the Board's recommendation that 20 points should be assessed for this factor.

8. Age at First Sex Crime

The parties agree with the Board's recommendation that 0 points should be assessed for this factor.

9. Number and Nature of Prior Crimes

[1] The Board recommended that 15 points be assessed under risk factor 9 based on the defendant's prior convictions for non-violent felonies. The defendant argued that his prior Florida convictions should not qualify as a history involving non-violent felonies for the purposes of risk factor 9 because the crimes of conviction would not constitute predicate felonies in New York. The case summary indicates that the defendant was convicted of burglary and grand larceny in Florida in 1980. However, the summary does not list any specific statute by number or title under which the defendant was convicted for either of those crimes.

In general, risk factor 9 of the Risk Assessment Instrument imposes 15 points for a defendant's prior criminal history where he has a conviction for a non-violent felony. On the other hand, if a defendant has a criminal record involving a violent felony, sex crime, or endangering the welfare of a child, the instrument assesses 30 points.

Notably, in the Risk Assessment Guidelines and Commentary, the commentary for risk factor 9 cites section 70.02 (1) of the Penal Law, which defines a violent felony for the purpose of assessing second violent felony offender status, and states, "The term violent felony, as used in the guideline, has the same meaning as in the Penal Law." (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 14 [2006].) Unlike the term violent felony, the Guidelines do not define a{**65 Misc 3d at 220} "non-violent felony." Nor do they explicitly adopt or refer to the definition of a felony from section 70.06 (1) (b) (i) of the Penal Law, which defines a felony as necessary to determine whether a defendant is a predicate felon.

The Second Department has found that the People may rely on the case summary from the Board of Examiners of Sex Offenders to establish by clear and convincing evidence that the defendant has previously committed a non-violent felony within the meaning of risk factor 9. (See People v Nowicki, 133 AD3d 732, 732 [2d Dept 2015].) It appears, however, that the Second Department has never explicitly addressed whether the term "non-violent felony" under risk factor 9 incorporates the definition of a felony from section 70.06 (1) (b) (i) of the Penal Law.

Other appellate divisions have apparently come to differing conclusions on the issue. In People v Struble (49 AD3d 1348 [4th Dept 2008]), the Fourth Department rejected the defendant's argument that a prior Texas conviction should not qualify as a felony under risk factor 9 because it would not constitute a predicate felony under New York law. Instead, the Court found that the term "non-violent felony" did not incorporate the definition of a second felony offender from section 70.06 (1) (b) (i). Thus, the Court concluded that the lower court had properly found that the assessment of 15 points under risk factor 9 was supported by clear and convincing evidence.

More recently, in People v Hiram (142 AD3d 1304, 1305 [4th Dept 2016]), the Fourth Department found that a lower court had properly imposed 15 points under risk factor 9 for a defendant's prior non-violent felony conviction where reliable hearsay in the case summary and the defendant's criminal history report indicated "that defendant committed a felony in the [*4]State of Texas." The Court also noted, "Although given an opportunity to discover and present evidence on the matter . . . defendant adduced nothing in opposition to those materials." (Id., quoting People v Wroten, 286 AD2d 189, 199 [4th Dept 2001].)

The First and Third Departments, however, have employed a different approach. While neither Court appears to have directly addressed the issue of whether risk factor 9 adopts the inquiry of the second felony offender statute, both have implicitly relied on similar reasoning, at least to the extent that they have looked at the similarities between the out-of-state crime and a New York felony. In People v Galindo (107 AD3d 603, 603-604 [1st Dept 2013]), the First Department{**65 Misc 3d at 221} agreed with the defendant that he should not have been assessed 30 points under risk factor 9 because his Pennsylvania robbery conviction would have constituted a third-degree robbery in New York, which would not qualify as a violent felony under section 70.02 (1) of the Penal Law. Regardless, the Court found that 15 points should be imposed under risk factor 9 because "the record show[ed] that the conduct underlying defendant's foreign conviction was within the scope of a New York felony offense." (Id.) Even so, the Court did not explicitly rely on section 70.06 (1) (b) (i) of the Penal Law or explain whether a determination that a crime was "within the scope" of a New York felony mirrored the requirements of that statute.

Similarly, in People v Simons (157 AD3d 1063 [3d Dept 2018]), the Court found that the SORA court had properly assessed 15 points for the defendant's non-violent felony history where the defendant was convicted of theft by deception as a felony in Pennsylvania for stealing a car. The Court found,

"Although [the defendant] argues that the crime in Pennsylvania would not have been a felony in New York, a conviction in Pennsylvania of theft by deception in the third degree stemming from the theft of a motor vehicle is within the scope of grand larceny in the fourth degree in New York, a class E felony." (Id. at 1065.)

Thus, the Court apparently considered not only the elements of the out-of-state crime, but also the crime's underlying facts, and found it necessary that at least the specific conduct committed would constitute a felony within New York. While this analysis does not precisely replicate the predicate felon standard, it does seem to require a SORA court to analyze the elements and facts of the defendant's previous crimes to determine whether his conduct would have constituted a felony in New York.

This court finds the reasoning of the Fourth Department in Struble and Hiram consistent with the language of the Risk Assessment Guidelines and Commentary and the Court of Appeals' manner of construing SORA; thus, the court adopts the Fourth Department's conclusion that the definition of a non-violent felony under the Risk Assessment Guidelines does not incorporate section 70.06 (1) (b) (i) of the Penal Law. Indeed, this interpretation comports with the Court of Appeals' decision in Matter of North v Board of Examiners of Sex Offenders of State of N.Y. (8 NY3d 745, 752 [2007]). In that case, the{**65 Misc 3d at 222} Court found that the language in a different portion of SORA was not intended to import the requirements of identical language in section 70.04 (1) (b) (i) of the Penal Law, the second violent felony offender statute. The Court concluded:

"As part of the penal system, enhanced sentencing statutes serve to extend the term of incarceration attending a criminal conviction. In contrast, SORA is not a penal statute and the registration requirement is not a criminal sentence. Rather than imposing punishment for a past crime, SORA is a remedial statute intended to prevent future crime; its aim is to protect communities by notifying them of the presence of individuals who [*5]may present a danger and enhancing law enforcement authorities' ability to fight sex crimes. While application of a strict equivalency standard [with respect to the elements of foreign crimes] is understandable in the enhanced sentencing context where the length of a defendant's incarceration is to be determined, it may not be the optimal vehicle to effectuate SORA's remedial purposes. The legislative history of SORA does not disclose any intent by lawmakers to import the test from the Penal Law." (Id. at 752-753 [internal quotation marks, brackets and citations omitted].)

The same rationale supports the conclusion that an out-of-state felony need not meet the requirements of section 70.06 (1) (b) (i) to constitute a "non-violent felony" under risk factor 9.

Thus, the People were not required to demonstrate that the defendant's out-of-state convictions would render him a predicate felon in New York. As a result, the court finds that the Board's case summary was sufficient to establish by clear and convincing evidence that the defendant has a non-violent felony criminal history based on his Florida convictions for burglary and grand larceny. (See Nowicki, 133 AD3d at 732.)

The defendant will be assessed 15 points under risk factor 9.^[FN*]

10. Recency of Prior Felony or Sex Crime

The parties agree with the Board's recommendation that 0 points should be assessed for this factor.{**65 Misc 3d at 223}

11. Drug or Alcohol Abuse

The parties agree with the Board's recommendation that 15 points should be assessed for this factor.

12. Acceptance of Responsibility

The parties agree with the Board's recommendation that 0 points should be assessed for this factor.

13. Conduct While Confined/Supervised

The Board recommended that 20 points be assessed for this risk factor based on the defendant's disciplinary record while incarcerated. The defendant contests the assessment of these points, arguing that the People cannot rely on the case summary alone to satisfy the clear and convincing evidence standard.

[2] The Board's case summary indicates that the defendant's conduct while incarcerated "is unsatisfactory with sexual misconduct as he incurred seven disciplinary sanctions for Lewd Conduct between 1999 and 2016, which are considered sex offense violations in DOCCS." Overall, the defendant received 25 tier II sanctions and 26 tier III sanctions, which are more serious, during his confinement. His most recent disciplinary sanction, which was for fighting, occurred on June 12, 2017.

The Guidelines provide:

"This factor [(factor 13)] looks to the offender's conduct while in custody or under supervision as a predictor of future behavior. For example, an offender who has numerous citations for disciplinary violations or who accrues disciplinary dispositions of [*6]a serious nature or who receives dispositions for behavior such as attempting to contact the victim may be assessed points in this category. An offender who has incurred serious disciplinary violations in prison poses a heightened risk of recidivism: his misconduct bodes ill for his return to the streets. An offender's adjustment to confinement in prison also is unsatisfactory if he has a recent Tier Three disciplinary violation. . . .⁹

"9 Tier 3 disciplinary violations are the most serious infractions under DOCS' Three-Tier disciplinary system. Such violations can result in the loss of good time credits for an inmate.

"Even more troubling are instances where the offender, while in custody or under supervision, has{**65 Misc 3d at 224} been involved in inappropriate sexual behavior or receives dispositions for behavior such as possessing pornography or any factor related to his sexual acting out" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 16-17 [2006]).

As the Second Department noted in People v Abrams (76 AD3d 1058 [2d Dept 2010]), the Board's case summary constitutes reliable hearsay, which the People may rely upon to prove the necessary facts at a SORA hearing. (See Correction Law § 168-n [3].) Here, the facts in the case summary establish by clear and convincing evidence that the defendant had a severely unsatisfactory disciplinary record while incarcerated, which included sexual misconduct. (See People v Hawthorne, 158 AD3d 651 [2d Dept 2018] [properly assessed 20 points under risk factor 13; defendant committed a tier II disciplinary infraction by attempting to initiate sexual contact with an on-duty correction officer while incarcerated]; People v Zaire, 123 AD3d 641 [1st Dept 2014] [properly assessed points under risk factor 13; defendant engaged in act of lewdness directed at female officer and committed many other infractions]; People v Birch, 99 AD3d 422 [1st Dept 2012] [properly assessed 20 points under risk factor 13; defendant repeatedly engaged in lewd behavior directed at female personnel]; People v Lawson, 90 AD3d 1006 [2d Dept 2011] [properly assessed 20 points for risk factor 13; defendant committed a tier II infraction involving his lewd exposure to a female officer].)

The defendant will be assessed 20 points under risk factor 13.

14. Supervision

The parties agree with the Board's recommendation that 15 points should be assessed for this factor.

15. Living/Employment Situation

The parties agree with the Board recommendation that 0 points be assessed for this factor.

Based on the aggregate score of points and the risk factors in support thereof, the People presented clear and convincing evidence that supported the defendant's classification as a level three sex offender.

Ordered that pursuant to Correction Law § 168-n (1), this court determines the defendant to be a sexually violent offender;{**65 Misc 3d at 225} ordered that with respect to the level of notification, this court determines the defendant should be rated a level three.