Opinion
No. 2014–0853.
06-03-2015
PEOPLE of the State of New York, v. Scott M. HABSHI, Defendant.
Hon. Kathleen B. Hogan, Warren County District Attorney, (Matthew Burin, Esq., of counsel). John P.M. Wappett, Warren County Public Defender, (Bryan M. Racino, Esq., of counsel).
Hon. Kathleen B. Hogan, Warren County District Attorney, (Matthew Burin, Esq., of counsel).
John P.M. Wappett, Warren County Public Defender, (Bryan M. Racino, Esq., of counsel).
GARY C. HOBBS, J.
PROCEDURAL BACKGROUND
On October 25, 2014, Scott Habshi was charged in this Court with the crime of Forcible Touching [Penal Law § 130.52 ] arising out of an incident occurring at the Glens Falls Civic Center where the defendant grabbed a female victim by her buttocks and rubbed his genitals side to side against her buttocks. On October 5, 2014, and November 9, 2014, the Defendant was arrested and charged in the Queensbury Town Court with two separate counts of Forcible Touching [Penal Law § 130.52 ] for unrelated incidents involving him thrusting his genitals into the buttocks of two female stranger victims while at a department store and at a grocery store. These incidents were alleged to have occurred on September 23 and October 25, 2014, respectively.
On January 8, 2015, the Defendant was arrested and charged in this Court with Harassment in the Second Degree [Penal Law § 240.26(1) ], after he pressed his body upon the back of a female stranger, also tugging on her jacket in an abrupt manner as she stood in the aisle at a grocery' store.
All of these arrests occurred while the defendant was serving a sentence of probation from a January 28, 2013 conviction in the Town Court, Town of Queensbury, for the crime of Forcible Touching [Penal Law § 130.52 ].
On January 20, 2015, the Defendant was convicted, by guilty plea, of Forcible Touching in the Queensbury Town Court. On January 22, 2015, the Defendant entered a plea of guilty in this Court to the crime of Forcible Touching and Harassment in the Second Degree. On March 5, 2015, the Defendant was sentenced to a term of incarceration in the Warren County Correctional Facility for a period of 90 days, which time was to run concurrent with the Defendant's conviction to the crime of Forcible Touching in the Queensbury Town Court.
The defendant's respective guilty pleas were part of a global resolution of all of the charges pending against the Defendant in both the Glens Falls City Court and in the Queensbury Town Court. For the above matters, he was sentenced to a total of 18 months in the Warren County Jail without supervised release and has a scheduled release date of July 3, 2015.
A Sex Offender Registration [SORA] Hearing was scheduled by this Court for March 26, 2015. That hearing was adjourned on consent of all parties to April 16, 2015.
On or about April 3, 2015, the New York State Board of Examiners of Sex Offenders filed its Risk Assessment Instrument [RAI] with the Court. The Board's RAI indicated a Total Risk Factor score of 95 for a Level 2 (moderate) risk assessment. The Board's RAI, however, requested a departure to a Level 3 (high) risk assessment on the basis that:
“although the defendant pleaded guilty to a general offense charge (Harassment Second Degree), this additional offense was sexual in nature and constituted another victim of his frottage behavior not captured in the scoring. Furthermore, the totality of his offenses disposed in two separate courts is not fully captured by the RAI for this Indictment. A Level III is most appropriate for this offender whose sex offending behavior has gone unabated despite prior detections, sanctions and treatment.”
On April 7, 2013, the District Attorney's Office submitted their own RAI, which indicated a Total Risk Factor Score of 110 points for a Level 3 (high) assessment.
At the April 16, 2015 Hearing, Defense Counsel requested clarification of whether the People intended to rely on its April 7, 2015 RAI or on the Board's April 3, 2015 RAI. The People objected to the Board's calculations and requested to be allowed to proceed under its RAI. In an attempt to narrow any areas of dispute, this Court requested oral argument on the positions of the parties. The People indicated that, based on its April 7, 2015 RAI, the State was seeking a Level 3 assessment with a finding that the Defendant was a predicate sex offender. Defense objected to the proceedings on the grounds that a) the District Attorney's RAI was received by defense counsel on April 9, 2015, which was insufficient notice to prepare; b) to the extent that the District Attorney's office was seeking to introduce the Warren County Department of Probation Presentence Investigation (PSI) report, dated February 19, 2015, for the Defendant, that the People had failed to provide a copy to defense counsel or to notice them of the People's intention to rely on this document; and c)that unreliable hearsay was included in the documents produced to this Court in support of the People's RAI. Defense counsel further indicated that, upon his review of the Board's April 3, 2015 RAI, defense agreed with the Board's calculations and assessments, with the exception of fifteen (15) points assessed by the Board on Item No. 11 [Drug or Alcohol abuse].
By email dated April 15, 2015, defense counsel requested that this Court provide him with “a copy of the PSI in order to prep for tomorrow's hearing”. A copy of the PSI was faxed by this Court to defense counsel on April 15, 2015.
This Court then adjourned the SORA Hearing to April 23, 2015 to allow the defendant sufficient time to prepare for the hearing. No testimony was taken at the April 16, 2015 hearing. The People then served a copy of the PSI on defense counsel.
By letter dated April 22, 2015, the People notified defense counsel and this Court that the People were withdrawing their RAI and intended on relying on the Board's RAI. Here, the People indicated that “[a]lthough we respectfully disagree with the Board's reasoning for not assessing points in certain categories, we agree with the Board that an upward departure to a Level 3 is warranted and that Mr. Habshi should be classified as a predicate sex offender.” A separate April 22, 2015 letter submitted by the District Attorney's Office to defense counsel included various documents submitted by the People in support of the Board's RAI.
On April 23, 2015, the parties appeared in this Court for the continuation of the SORA hearing. Prior to the commencement of the hearing, defense counsel objected to the proceedings on the grounds that a) the People's April 22, 2015 letter constituted a change in the People's position in the hearing, and that defense counsel had prepared for the hearing based on the People's RAI, rather than the Board's RAI; b) the defendant was entitled to 15 days notice of the People's request for an upward departure and the People's request that the defendant be classified as a predicate sex offender; and c) once the Court commenced the SORA hearing, the People were restricted to the use of their original RAI and to the documents submitted in support of their original RAI. Over defense counsel's objection, the SORA hearing was adjourned to May 21, 2015 to allow defense counsel an opportunity to prepare for the hearing utilizing the Board's RAI and supporting documentation.
On May 21, 2015, the SORA Hearing was completed by this Court, using the Board's RAI and case summary, over the objection of the Defendant. In reaching this Decision and Order, this court reviewed and relied upon the submissions of the parties, and the sworn testimony of Martha DeLarm, Warren County Probation Department.
The supporting documentation supplied on by the People, which was reviewed and relied upon by this Court in issuing this Decision and Order included: a) Board of Examiner's RAI and case summary; b) the Probation Department's February 19, 2015 PSI; c) copies of the Defendant's charges of Forcible Touching and Harassment Second filed in this Court, together with the affidavits filed in this Court supporting said charges; d) certified copies of the Town Court, Town of Queensbury, including the Sept. 23, 2014 Information charging the Defendant with Forcible Touching, November 4, 2014 Information charging the Defendant with Forcible Touching, December 12, 2011 Certificate of Conviction for Forcible Touching [Penal Law § 130.52 ], March 2, 2015 Certificate of Conviction for Forcible Touching [Penal Law § 130.52 ], March 2, 2015 Certificate of Conviction for Forcible Touching [Penal Law § 130.52 ](separate offense); Certified Copy of Inmate Disciplinary Record of Warren County Correctional Facility, dated March 29, 2015; Letter dated October 7, 2014 from St. Anne Institute to Martha DeLarm, Warren County Probation; October 14, 2014 Discharge Summary of St. Anne Institute.
ANALYSIS
Pursuant to Article 6—C of the Correction Law, this Court is required to determine the duration of the defendant's registration obligations upon application of the guidelines set forth in Correction Law § 168 —1(5), and to determine the defendant's level of notification upon consideration of the factors set forth in Correction Law § 168 –1(6).
The Sex Offender Registration Act [SORA] (Correction Law Art 6–C) sets out separate procedures for judicial determination of a sex offender's risk level depending on the nature of the offender's sentence. See: People v. Game, 110 AD3d 861 (2d Dept.2013) ; People v. Grimm, 107 AD3d 1040 (3d Dept.2013). When an offender is sentenced to probation or otherwise discharged without incarceration, the court makes the risk level determination following the District Attorney's submission of a statement setting forth the risk level that is sought by the People. See: Correction Law § 168–d[3] ; People v. Game, 110 AD3d 861 (2d Dept.2013) ; People v. Grimm, 107 AD3d 1040, 1042 (3d Dept.2013) ; People v. Black, 33AD3d 981 (2d Dept.2006).
Where, as here, the offender is incarcerated, the court makes the determination after receiving a recommendation from the Board of Examiners of Sex Offenders. Correction Law § 168–n(1).
The determination “shall be made thirty [30] calendar days prior to discharge, parole or release.” Correction Law § 168–n(2) ; See also: Correction Law § 168–l[6] ; People v. Game, 110 AD3d 861 ; People v. Grimm, 107 AD3d at 1042.
Initially, this Court was, at the request of the People, going to proceed with the SORA determination based on the District Attorney's RAI. However, on April 22, 2015, the People withdrew their RAI and this Court proceeded with the hearing utilizing the Board's RAI and the computational table provided by the Board. As a result, contrary to the defendant's position, this Court has utilized the correct statutory recommendation from the Board of Examiners of Sex Offenders in making this decision. Correction Law § 168–n(1).
With respect to the defendant's objections to the failure of the People to provide the defendant with sufficient notice of the determinations sought by the district attorney together with the reasons for seeking such determinations, defense counsel is correct that, pursuant to Correction Law § 168–d, “[a]t least fifteen days prior to the determination proceeding, the district attorney shall provide to the court and the sex offender a written statement setting forth the determinations sought by the district attorney together with the reasons for seeking such determinations.” Correction Law § 168–d(3). However, the failure of the District Attorney's office to provide a timely notice does not deprive this Court of jurisdiction to make a SORA determination or otherwise limit or preclude the People's proof at the hearing. Instead, upon receipt of the District Attorney's written notice, the defendant is entitled to an adjournment to have sufficient time to prepare for the hearing. Correction Law § 168–d(3).
In People v. Warren, 42 AD3d 593, 840 N.Y.S.2d 176 (3d Dept.2007), the defendant claimed a procedural due process violation where the People admitted failed to provide timely written notice of their recommendations prior to the hearing. Similar to the present case, the defendant asserted that, as a result of the late notice, the People waived their right to be heard and that the People's evidence should not have been considered. Id. at 594. The Appellate Division, Third Department, disagreed with the defendant's position, holding that the “Defendant's receipt of the required documents on March 10, 2006 [the hearing date] and Supreme Court's adjournment of the hearing until April 5, 2006–at which defendant and counsel were given and pursued an ample and meaningful opportunity to respond to all aspects of the People's and the Board's risk level assessments-adequately protected defendant's due process rights.”Id., citing, People v. Jordan, 31 AD3d 1196, 818 N.Y.S.2d 718 (4th Dept.2006), lv. den., 7 NY3d 714, 824 N.Y .S.2d 606, 857 N.E.2d 1137 (2006) ; People v. David W., 95 N.Y.2d 130, 711 N.Y.S.2d 134, 733 N.E.2d 206 (2000) ; People v. Farchione, 27 AD3d 1166, 810 N.Y.S.2d 726 (4th Dept.2006) ; People v. Davila, 299 A.D.2d 573 (3d Dept.2002) ; People v. MacNeil, 283 A.D.2d 835, 836, 727 N.Y.S.2d 485 (3d Dept.2001) ; People v. Neish, 281 A.D.2d 817, 722 N.Y.S.2d 815 (3d Dept.2001).
In the present case, defense counsel is correct that the People's written notice, dated April 22, 2015, where the People provided the defendant with their position, determination and supporting documentation requesting an upward departure from the Board's RAI initial computation of a Level 2 sex offender to a Level 3 determination, together with the People's request that the defendant be classified as a predicate sex offender, was untimely since the continuation of the SORA hearing was scheduled for April 23, 2015. The defendant was entitled to written notice of the People's determination and position fifteen days prior to the hearing. However, contrary to the defendant's assertion, the defendant's procedural due process rights were not violated, as this Court granted an adjournment of the April 23, 2015 hearing to May 21, 2015 to allow the defendant ample time to prepare for the hearing. Correction Law § 168–d(3) ; People v. Warren, 42 AD3d 593, 840 N.Y.S.2d 176 (3d Dept.2007).
The Board's RAI also requested the upward departure to a Level 3, which was received by defense counsel on April 16, 2015, and which defense counsel stipulated had the correct computation, except for Item # 11 [the Defendant's alcohol and drug history].
It is well settled that the Board's RAI provides the Court with a rebuttable presumption that the calculation will generally “result in the proper classification in most cases so that departures will be the exception not the rule.” See: Board of Sex Offense Examiners, “Sex Offender Registration Act”: Risk Assessment Guidelines and Commentary, at 4 (2006); People v. Williams, 19 AD3d 388, 795 N.Y.S.2d 895, lv. denied, 5 NY3d 713, 806 N.Y.S.2d 164, 840 N.E.2d 133 ; People v. Guaman, 8 AD3d 545, 778 N.Y.S.2d 704 ).
In the present case, the Board's RAI allocated a point total to each of the statutory recidivism risk factors listed in Correction Law § 168–l(5) and added the total number of points allocated to the defendant to reach a Total Risk Factor Score of 95, which designates a Level 2 (moderate) risk to re-offend. At the hearing, defense counsel admitted, on the record, that the Board's calculations for each of the statutory categories was correct, except for the fifteen [15] points allocated to Mr. Habshi for Item # 11 [Drug or Alcohol abuse].
With respect to Item # 11, the defendant's drug or alcohol abuse history, the People produced Probation Department's PSI, together with the testimony of Martha DeLarm. Based on this testimony and evidence, the People proved, by clear and convincing evidence, that defendant Habshi had a history of alcohol and marijuana abuse starting at the age of 13. He had participated in numerous inpatient and outpatient treatments in the past, including treatment at Center for Recovery, Seton Hospital, St. Lawrence Addiction Treatment Center, 820 River Street, SPARC Addition Recovery, Baywood and St. Mary's Hospital. Habshi admitted to his probation officer that he had consumed alcohol while on probation. Probation records also revealed that he experimented with crack, cocaine and amphetamines in the past. Even though Ms. DeLarm admitted that the defendant had not tested positive for drugs or alcohol, the record before this Court, including the reliable hearsay information received by Ms. DeLarm from the defendant's treatment providers, clearly demonstrates that the defendant has a significant history of drug and alcohol abuse. The Board properly awarded 15 points to Item # 11.
Based on defense counsel's statement that the remaining calculations as prepared by the Board in its RAI were accurate, the People have demonstrated that the defendant has a Total Risk Factor Score of 95 points, which designates a Level 2 (moderate) risk level to re-offend.
The Board scored defendant Habshi on its RAI for engaging in sexual contact over clothing (5 points); for sexual contact with the stranger victim (20 points); for his prior sex crimes (30 points); for the temporal proximity of his most recent sex crime conviction in 2013 with the instant offense (10 points); for his history of alcohol and substance abuse (15 points) and for his release without the benefit of supervision (15 points).
With respect to the People's request for an upward departure to a Level 3 assessments, this Court is authorized to depart upwardly from the presumptive classification, when “there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines.” (Board of Sex Offense Examiners, “Sex Offender Registration Act”: Risk Assessment Guidelines and Commentary, at 4 [2006]. See also; People v. White, 25 AD3d 677, 811 N.Y.S.2d 699, lv. denied, 6 NY3d 715, 823 N.Y.S.2d 356, 856 N.E.2d 920 ; People v. Henry, 91 AD3d 927, 938 N.Y.S.2d 323 ; People v. Wyatt, 89 AD3d 112, 931 N.Y.S.2d 85 (2d Dept.2011), leave to appeal denied, 18 NY3d 803, 938 N.Y.S.2d 861, 962 N.E.2d 286 (2012) (A court in a hearing to determine the risk level under the Sex Offender Registration Act possesses the discretion to impose a lower or a higher risk level if it concludes that the factors in the risk assessment instrument do not result in an appropriate designation).
Thus, when the court considers an upward departure from the presumptive sex offender risk level, 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 re-offense 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. People v. Wyatt, 89 AD3d 112, 931 N.Y.S.2d 85 (2d Dept.2011), leave to appeal denied, 18 NY3d 803, 938 N.Y.S.2d 861, 962 N.E.2d 286 (2012).
Based on the credible evidence in this matter, the People have proven, by clear and convincing evidence, facts that support an upward departure to a Level 3 (high) risk to re-offend. More specifically, Defendant Scott Habshi is a 50 year-old Predicate Offender, who was convicted in this Court of Forcible Touching, in violation of PL § 130.52, on January 22, 2015, under Docket # 2014–0853 in Glens Falls City Court. On the same date, the defendant was also convicted of a separate offense of Harassment in the Second Degree, which involved the defendant pressing his body against the back of a female stranger, in a sexual manner, and also tugging on her jacket in an abrupt manner as she stood in the aisle at a grocery store.
On March 2, 2015, he was convicted by guilty plea to two separate counts of Forcible Touching, in violation of PL § 130.52, in the Queensbury Town Court. The Queensbury Town Court convictions involved two separate incidents, occurring on September 23, 2014, and October 25, 2014, where the defendant rubbed or thrust his genitals into the buttocks of two female stranger victims at a department store and at a grocery store.
The defendant has a significant history of sexual offenses, including a December 12, 2011 conviction of Forcible Touching in the Queensbury Town Court, for which he was sentenced to 60 days in jail and Fined $500 dollars. That conviction also involved Habshi groping a female stranger in a public place. On January 28, 2013, he was convicted of Forcible Touching in the Queensbury Town Court and was sentenced to 3 years of probation. The defendant had committed the above offenses while serving his sentence of probation, which was revoked when he committed the instant offenses. In addition, at the time of the instant offenses in this Court, the Defendant was already a Level 1 registered sex offender. The defendant failed to actively participate in sex offender treatment, which resulted in his unsatisfactory discharge from the St. Anne's program.
This Court hereby adopts the Board's recommendation for a departure to a Level III (High) risk to re-offend based on the fact that although defendant Habshi pleaded guilty to a general offense charge (Harassment in the Second Degree) in this Court, this offense was actually sexual in nature and constituted another victim of his frottage behavior (i.e.; compulsive sexual behavior) that is not adequately reflected in the Board's RAI scoring. Moreover, this Court agrees that the totality of Mr. Habshi's offenses, in both the Glens Falls City Court and in the Queensbury Town Court, is not fully captured by the Board's RAI for this Docket.
Based on the foregoing, a Level III is the most appropriate designation for defendant Scott M. Habshi, especially considering that he has repeatedly continued to commit sexual offenses-over a short period of time-despite his prior arrests and convictions, his sex offender treatment, and even after serving a period of incarceration and probationary supervision.
Finally, a “Predicate sex offender” means a sex offender who has been convicted of an offense set forth in subdivision two or three of section 168–a of the Corrections Law, and when the offender has been previously convicted of an offense set forth in subdivision two or three of said section. Corrections Law § 168–a(7)(c). As noted above, the defendant had two (2) prior convictions for Forcible Touching in the Queensbury Town Court from December 12, 2011 and January 28, 2013. Based on the defendant's current conviction and his prior convictions for Forcible Touching, defendant Habshi is properly classified as a “Predicate Sex Offender.”