Opinion
527411
03-16-2020
The PEOPLE of the State of New York, Respondent, v. Russell A. MATHEWS, Appellant.
Michael T. Baker, Acting Public Defender, Binghamton (Alexander M. Keene of counsel), for appellant. Michael A. Korchak, District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.
Michael T. Baker, Acting Public Defender, Binghamton (Alexander M. Keene of counsel), for appellant.
Michael A. Korchak, District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.
Before: Garry, P.J., Lynch, Mulvey, Aarons and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Reynolds Fitzgerald, J.
In 2013, defendant pleaded nolo contendere in Pennsylvania to indecent assault, a sexually violent offense, and was sentenced to a prison term of nine months to five years as a consequence of his conduct in subjecting a six-year-old child to sexual contact (see 18 Pa.C.S. § 3126 [a][7] ). He was released on February 2, 2018, following the maximum expiration of his sentence. Upon his relocation to Broome County, the Board of Examiners of Sex Offenders prepared a risk assessment instrument that presumptively classified defendant as a risk level two sex offender (100 points) in accordance with the Sex Offender Registration Act (see Correction Law art 6–C) (see Correction Law §§ 168–a [2][a][i] ; [d][i] ). At the risk assessment hearing, the People adopted the Board's risk assessment recommendation and defendant challenged the assessment of points under several risk factors. County Court assessed a risk factor score of 100, classified defendant as a risk level two sex offender and denied his request for a downward departure. Defendant appeals.
Defendant's crime of conviction in Pennsylvania would constitute sexual abuse in the second degree in New York (see Penal Law § 130.60[2] ).
Defendant contends that he should not have been assessed 15 points under both risk factor 12, for not accepting responsibility for his conduct and refusing sex offender treatment, and risk factor 14, for release without supervision, and that assessing points under both risk factors constitutes double counting. We disagree. With regard to risk factor 12, the sex offender guidelines provide that "[a]n offender who does not accept responsibility for his [or her] conduct or minimizes what occurred is a poor prospect for rehabilitation," and that refusal to participate in sex offender treatment is "powerful evidence of the offender's continued denial and his [or her] unwillingness to alter his [or her] behavior" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15–16 [2006] ). The case summary and other reliable documentary evidence established that, when he was interviewed by police, defendant denied the charged conduct and blamed the victim and another child (see People v. DePerno , 165 A.D.3d 1351, 1352, 84 N.Y.S.3d 605 [2018], lv denied 32 N.Y.3d 915, 2019 WL 690310 [2019] ). Defendant also explicitly "refused" treatment while incarcerated (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 16 [2006]; cf. People v. Ford , 25 N.Y.3d 939, 941, 6 N.Y.S.3d 541, 29 N.E.3d 888 [2015] ). Contrary to his claims, a plea of nolo contendere, like an Alford plea (see North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 [1970] ), "does not entail an admission of culpability and, thus, may properly be treated as a refusal to accept responsibility," along with other relevant circumstances, for purposes of risk factor 12 ( People v. Matthie , 34 A.D.3d 987, 990, 824 N.Y.S.2d 454 [2006], lvs denied 8 N.Y.3d 805, 831 N.Y.S.2d 106, 863 N.E.2d 111, 8 N.Y.3d 847, 830 N.Y.S.2d 706, 862 N.E.2d 798 [2007]; see People v. Briggs, 86 A.D.3d 903, 904, 928 N.Y.S.2d 108 [2011] ; People v. Hazen , 47 A.D.3d 1091, 1092, 850 N.Y.S.2d 267 [2008] ; see also Matter of Kasckarow v. Board of Examiners of Sex Offenders of State of N.Y. , 25 N.Y.3d 1039, 1042, 10 N.Y.S.3d 492, 32 N.E.3d 927 [2015] ; Matter of Silmon v. Travis , 95 N.Y.2d 470, 474–477, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000] ). In view of the foregoing facts, we find that the record amply supports County Court's conclusion that defendant failed to genuinely accept responsibility for his actions and refused treatment, warranting the assignment of 15 points under risk factor 12 (see People v. Briggs , 86 A.D.3d at 904, 928 N.Y.S.2d 108 ; People v. Mercado , 55 A.D.3d 583, 583–584, 865 N.Y.S.2d 629 [2008], lv denied 11 N.Y.3d 714, 873 N.Y.S.2d 269, 901 N.E.2d 763 [2008] ; People v. Brister , 38 A.D.3d 634, 634, 832 N.Y.S.2d 246 [2007], lv denied 8 N.Y.3d 815, 839 N.Y.S.2d 453, 870 N.E.2d 694 [2007] ; People v. Matthie , 34 A.D.3d at 990, 824 N.Y.S.2d 454 ).
The plea minutes are not included in the record on appeal, and defendant made no argument at the risk assessment hearing that, during the plea proceedings or at any time thereafter, he admitted to the conduct underlying the indecent assault charge or accepted responsibility for that conduct.
In challenging the assessment of 15 points under risk factor 14, defendant does not dispute that he was released from a Pennsylvania prison without any supervision. Rather, his argument is that he was held until the maximum expiration of his sentence and released without supervision solely due to his refusal to participate in a sex offender treatment program and, thus, County Court impermissibly double counted his refusal to participate in treatment under both risk factors 12 and 14. However, the purpose of the risk level determination is "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] ; see People v. Mingo , 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ) and, to that end, "[t]he guidelines emphasize the importance of strict supervision to avoid repeat offenses when sex offenders are released into the community" ( People v. Grimm , 107 A.D.3d 1040, 1043, 967 N.Y.S.2d 189 [2013], lv denied 21 N.Y.3d 1042, 972 N.Y.S.2d 540, 995 N.E.2d 856 [2013], citing Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]; see People v. Saravia , 154 A.D.3d 1022, 1024, 61 N.Y.S.3d 723 [2017] ). As there is no dispute that defendant was a convicted sex offender who was released without any supervision, regardless of the reasons for the lack of supervision, he was properly assessed 15 points under this risk factor (see People v. Saravia , 154 A.D.3d at 1024, 61 N.Y.S.3d 723 ; People v. Middlemiss , 153 A.D.3d 1096, 1098, 60 N.Y.S.3d 593 [2017], lv denied 30 N.Y.3d 906, 2017 WL 5615862 [2017] ; People v. Leeks , 43 A.D.3d 1251, 1252, 842 N.Y.S.2d 613 [2007] ). There has been no finding that supervision would not reduce defendant's risk of reoffending, and the fact that his refusal to undergo treatment resulted in his later unsupervised release did not reduce his risk of recidivism or constitute an impermissible double counting with regard to factor 12.
Although we agree with defendant that the County Court should have applied a preponderance of the evidence standard to defendant's request for a downward departure, remittal is unnecessary as the record is sufficient to enable this Court to review defendant's contentions under the proper standard (see People v. Gillotti , 23 N.Y.3d 841, 845, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Coe , 167 A.D.3d 1175, 1176, 88 N.Y.S.3d 717 [2018] ; People v. Simons , 157 A.D.3d 1063, 1065, 69 N.Y.S.3d 185 [2018] ). In seeking a downward departure, it was defendant's burden to demonstrate, "by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v. Wilson , 167 A.D.3d 1192, 1193, 88 N.Y.S.3d 715 [2018] [internal quotation marks and citation omitted] ). Defendant argues that a downward departure was warranted in that, had he been sentenced in New York, he would have received a period of postrelease supervision and, thus, he would not have been assessed 15 points under risk factor 14 for unsupervised release (see Penal Law §§ 70.45 [2–a] ; 70.80[1], [9] ). However, even deducting the 15 points assessed under risk factor 14, defendant would have a total risk score of 85, still a presumptive risk level two sex offender. More to the point, the reason for his unsupervised release — refusal to participate in sex offender treatment — does not minimize his risk of reoffending and is certainly not a mitigating factor. Upon our review of the record under the proper standard, we do not find that there were mitigating factors present that were not adequately taken into consideration by the guidelines and, thus, we are satisfied that County Court did not abuse its discretion in denying the requested downward departure and in classifying defendant as a risk level two sex offender (see People v. Gillotti , 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
Garry, P.J., Lynch, Mulvey and Aarons, JJ., concur. ORDERED that the order is affirmed, without costs.