Opinion
Ind. No. 2016-0479
09-12-2022
The PEOPLE of the State of New York, v. Dwight MOSS, Defendant.
A hearing was held on July 27, 2022, pursuant to Correction Law Article 6-C to determine the level of risk to re-offend and threat to public safety posed by the above-listed defendant/offender. Defendant/offender was present with counsel.
The Court received into evidence without objection the New York State Board of Examiners Department's Proposed Risk Assessment Instrument ("RAI") (Exhibit 1), the Case Summary (Exhibit 2), the defendant/offender's Presentence Investigation dated January 23, 2017 ("PSI") (Exhibit 3), and the defendant's criminal history ("NYSIS") (Exhibit 4). I make the following "Findings of Fact" and "Conclusions of Law" based on the testimony and evidence I find credible and accurate.
FINDINGS OF FACT
On or about December 21, 2016, defendant/offender was convicted, after a jury trial, of one count of sexual abuse in the first degree and one count of endangering the welfare of a child. The defendant/offender was originally sentenced, as a second child sexual assault felony offender, to a determinate term of ten (10) years in the New York State Department of Corrections and Community Supervision (DOCCS) to be followed by ten (10) years of post-release supervision. Defendant/offender was sentenced as a second child sexual assault felony offender based upon a 2006 conviction of course of sexual conduct against a child in the second degree.
On appeal, the appellate court vacated the 2016 sentence and remitted the matter for a hearing on the issue of whether "the court in the prior proceeding coerced him into pleading guilty to a reduced charge by threatening to impose the maximum sentence if he were convicted after a trial" ( People v Moss , 200 AD3d 1662, 1664 [4th Dept 2021], lv denied 38 NY3d 1073 [2022] ). This Court conducted the hearing and found that the People did not meet their burden of demonstrating that the 2006 plea was knowing, intelligent and voluntary and therefore this Court declined to adjudicate the defendant a second child sexual assault felony offender for sentencing purposes on the 2016 conviction. Defendant/offender was sentenced as a first felony offender to a determinate term of six (6) years in DOCCS followed by ten (10) years of post-release supervision.
As set forth in the Case Summary, for the instant conviction, defendant/offender was convicted after trial of having subjected a seven-year-old girl, who was a family member, to sexual contact over clothing. He openly masturbated in front of the young girl when he was supposed to be babysitting her and other children and had "tickled [the girl's] vagina over clothing with his hand for his sexual gratification".
For the instant offense, Defendant/offender denied guilt at DOCCS reception, but has since indicated a willingness to complete the sex offender treatment program through parole.
Defendant/offender has an adult criminal history that includes convictions for: (1) forcible touching for which was sentenced to 90 days; and (2) sexual misconduct.
Defendant/offender received two Tier II sanctions while incarcerated.
The Board of Examiners of Sex Offenders scored the Risk Assessment Instrument as follows:
Risk Factor:
2.Sexual Contact with Victim: Contact Over Clothing ...... 5 points
5. Age of Victim: 10 or less ......................... 30 points
9. Number and Nature of Prior Crimes:
Prior Sex Crime ................................. 30 points
Total Risk Factor Score: 65 points - Level I (Low) risk to re-offend.
The Board alleges that as a result of the 2006 conviction, which although the People did not meet their burden on remand remains undisturbed by the appellate court, a presumptive override to Level 3 applies.
The People have adopted and requested that the Court assess the points in the same manner as the RAI set forth in Exhibit l. The People further adopt and take the position that the Court must apply the override based on the defendant's prior felony conviction for a sex offense, which results in the defendant/offender being presumptively deemed a Level III Sex Offender. Defendant/offender did not object to the assessment of points, but defendant/offender has objected to the Court applying the override based on this Court's prior finding that the prior felony conviction from 2006 was impermissibly coerced by the trial court in that case. The People have maintained that the override must be applied, but, as an alternative if the Court were to not impose the override, the People have argued for an upward departure. Defendant/offender opposed the upward departure and cited the lack of notice of the People's intention to seek an upward departure pursuant to Corrections Law § 168-n(3). The People have consented to an adjournment to continue the hearing to address the upward departure if the override is not applied.
Additionally, the People and the Board request defendant/offender be designated as a Sexually Violent Offender and a Predicate Sex Offender pursuant to Corrections Law Section 168-a.
CONCLUSIONS OF LAW
The Sex Offender Registration Act was intended to provide notice to the community of the risk of sex offenders released to their areas. There is no magic formula for making such determinations. Although the risk assessment instrument allows the Court and the Board of Examiners to utilize a tool for numerical determination of risk, the Court must consider all the facts and circumstances so as to make an accurate assessment of the risk that each individual defendant poses.
The law provides that the Court shall review the Board's recommendation and has the discretion to set aside a recommendation in arriving at a lower or higher classification after considering the risk factors and giving the defendant/offender an opportunity to be heard (Corrections Law § 168-n[1][2]). It is well settled that under the Guidelines and Commentary note, utilization results in the presumptively correct classification in most cases such that a departure is the exception rather than the rule ( People v Foy , 49 AD3d 835 [2d Dept 2008] ; People v Howard , 52 AD3d 1243 [4th Dept 2008] ).
The Court finds that risk factors requested by the Board and the People, and unopposed by the defendant/offender, are supported by clear and convincing evidence. Therefore, the Court will assess those points.
Regarding the applicability of the Override, this presents a novel issue that the Court has not found any other court in New York has directly addressed.
The New York State Sex Offender Registration Act Risk Assessment Guideline and Commentary (the "Guidelines") notes that "... the guidelines contain four overrides that automatically result in a presumptive risk assessment of level 3: (i) a prior felony conviction for a sex crime ..." (Guidelines, p. 19). "The People bear the initial burden of proving the applicability of a particular override by clear and convincing evidence" ( People v McCurdy , 198 AD3d 991, 992 [2nd Dept 2021], lv denied 38 NY3d 905 [2022], quoting People v Locklear, 154 AD3d 888, 889 [2nd Dept 2017] ). "Once the People have sustained this burden, ‘a SORA court is not possessed of any discretion in determining whether to apply [an] override, the application of the override is automatic’ " ( People v Locklear , 154 AD3d 888, 889 [2nd Dept 2017], quoting People v Johnson , 135 AD3d 720, 721 [2nd Dept 2016] ; see also People v Johnson , 11 NY3d 416, 418 [2008] ).
Here, the People have met their burden of proving, by clear and convincing evidence, the existence of the prior sex crime conviction. Defendant/offender does not argue that the conviction does not exist, but rather that the Court should not consider the prior conviction because of this Court's decision in the second felony offender hearing that the prior sex crime conviction was obtained unconstitutionally.
This Court is bound by the uncontroverted decision by the Supreme Court Appellate Division, Second Department in People v McCurdy that held that once the People establish the existence of a prior conviction for a sex crime by clear and convincing evidence, then the applicability of the override is automatic to create a presumptive Level III risk level ( People v McCurdy , 198 AD3d 991, 992 [2nd Dept 2021], lv denied 38 NY3d 905 [2022] ). The finding in the predicate hearing does not vacate the prior conviction. As the People correctly note in their submission, this Court did not overturn Mr. Moss's prior conviction.
Therefore, the automatic override applies and defendant/offender is presumptively a Level III risk to reoffend. To be clear, the override automatically results in a presumptive Level III risk-level but does not mandate that the Court find the defendant to be Level III ( People v Edmonds , 133 AD3d 1332 [4th Dept 2015] ).
Finally, the defendant/offender did not request that the Court consider a downward departure if the Court applied the override that resulted in a presumptive Level III risk level. Therefore, the Court will not consider a departure.
Therefore, the Court will assess the following points:
Risk Factor:
2. Sexual Contact with Victim: Contact Over Clothing ...... 5 points
5. Age of Victim: 10 or less ........................ 30 points
9. Number and Nature of Prior Crimes:
Prior Sex Crime ................................. 30 points
Total Risk Factor Score 65 points - Level I (Low) risk to re-offend.
Further, the Court will apply the override resulting in a presumptive Level III (High) risk to re-offend.
Finally, the defendant/offender's conviction for sexual abuse in the first degree mandates his designation as a sexually violent offender and each of the defendant/offender's three prior convictions (sexual misconduct, forcible touching and course of sexual conduct against a child) mandates his designation as a predicate sex offender, and the Court hereby designates defendant/offender as such.
Accordingly, it is hereby
ORDERED that the defendant/offender's risk assessment score is determined to be Level III (High ); that his name be entered in the Sex Offender Registry administered by the New York State Division of Criminal Justice Services, and that the defendant/offender register in accordance with the New York Corrections Law as a Sex Offender and designated as a Sexually Violent Offender and Predicate Sex Offender.
This constitutes the DECISION and ORDER of the Court.