Perez v. Annucci

Full title: In the Matter of the Application of LAWRENCE PEREZ, #08-A-4578…

Court: Supreme Court, Wyoming County

Date published: Feb 18, 2020

2020 N.Y. Slip Op. 34601 (N.Y. Sup. Ct. 2020)

Opinion

Index 22 014-19

02-18-2020

In the Matter of the Application of LAWRENCE PEREZ, #08-A-4578, Petitioner, v. ANTHONY ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent

For the Petitioner Justin C. Bonus, Esq. For the Respondent LETITIA JAMES, Attorney General by Kim S. Murphy Assistant Attorney General

MICHAEL M. MOHUN ACTING SUPREME COURT JUSTICE

Unpublished Opinion

For the Petitioner Justin C. Bonus, Esq.

For the Respondent LETITIA JAMES, Attorney General by Kim S. Murphy Assistant Attorney General

PRESENT: HONORABLE MICHAEL M. MOHUN Acting Supreme Court Justice

MEMORANDUM AND JUDGMENT

MICHAEL M. MOHUN ACTING SUPREME COURT JUSTICE

By petition pursuant to Article 78 of the CPLR verified on December 17, 2018, Lawrence Perez seeks an order directing the respondent to expunge from the records maintained by the Department of Corrections and Community Supervision ["DOCCS"] "any and all references" indicating that he is a sex offender, that he is prone to "sexually aggressive behavior" or that he, during the commission of the crime which gave rise to his current sentence, "branded [the] victim's genitals with a hammer and electrocuted [the] victim via his genitals." Citing 7 NYCRR §5.50, petitioner's counsel contends that DOCCS must remove the above-described references from its files relating to the petitioner because those references are based on inaccurate information. Respondent requests that the petition be dismissed or denied upon the answer dated September 11, 2019, and the confidential material submitted. Petitioner's counsel has submitted a reply to the answer dated November 21, 2019.

The petitioner is serving a sentence of 25 years to life for his conviction by jury verdict of Murder in the 2^nd degree. The petitioner was tried on a three count indictment charging him with, Count One, Murder in the 1^st degree under Penal Law §125.27(1)(a)(x), Count Two, Murder in the 2^nd degree under Penal Law §125.25(1), and Count Three, Manslaughter in the 1^st degree under Penal Law §125.20(1). He was acquitted of Count One. (It appears that Count Three was submitted to the jury in the alternative only, as an inclusory concurrent count to Count Two, and the jury therefore did not reach Count Three after having found the petitioner guilty of Count Two.) Count One, the Court notes, alleged that the petitioner acting in concert with others had tortured the victim in various ways over the course of 24 hours "evidencing] pleasure at the infliction of pain" upon the victim, whereas Count Two simply accused him, in concert with the others, of intentionally causing the death of the victim by blunt force trauma.

Before killing the victim, the perpetrators of the murder reportedly branded him on his genitals and anus with a heated hammer, electrocuted him by attaching live wires to his genitals and leg, forced him to drink Drano and made him ingest drugs. These reports of torture formed the factual the basis for the Murder in the 1^st degree charge of which the petitioner was acquitted, and they were included within the petitioner's Pre-sentence Report ["PSI"]. The references made in DOCCS's files to the details of torture described in the PSI are the references that the petitioner now contends are erroneous. As "Exhibit D" attached to the petition, petitioner's counsel has submitted copies of three documents found in the respondent's files in which the torture allegations are referenced, including a "Non-Sex Offense Referral" for the "Sex Offender Counseling and Treatment Program."

Citing Matter of Brown v. Goord (19 A.D.3d 773 [3^rd Dept., 2005]), petitioner's counsel argues that references to the torture of the victim must be expunged from DOCCS's files in this case because the petitioner was acquitted of Count One. Like the petitioner in the instant case, the petitioner in Brown was charged with several crimes, but convicted of only one. Specifically, the petitioner in Brown had been charged with committing assault J rape and sodomy against a woman, but was ultimately only convicted of assaulting her. Despite this, DOCCS's "guidance file" for the petitioner in Brown indicated that he had committed the sex crimes. Ruling that the respondent should have granted the request for expungement of the records in Brown, the Third Department noted that "[significantly, while the presentence report did affirmatively indicate that petitioner was guilty of sex crimes, it is apparent from a reading of that report, including the victim impact statement, that the only basis for the reporter's conclusion that petitioner was guilty of rape and sodomy is the recital therein of allegations related to the charges of which petitioner was already acquitted" (id., 775, emphasis added). In other words, the PSI in Brown contradicted itself. It did not justify the references made in DOCCS's files to the Brown petitioner as a sex offender. Rather, the victim's statement contained within the PSI, itself, indicated that the petitioner had not committed the sex crimes. From this, the Third Department concluded that "the reliance on the presentence report as a basis for refusing to expunge the misinformation in petitioner's guidance file lacked a rational basis" (id.)-The reliance of petitioner's counsel on Brown in this case, however, is misplaced. In Brown, as noted, the victim impact statement in the Pre-sentence Report contradicted the assertion that the defendant had committed sex crimes against the victim -as did, apparently, the victim's own testimony (see, Matter of Brown v. New York City Police Dept. 264 A.D.2d 558, 561 [1^st Dept., 1999]). These were the "unique facts of this case" (id.) which, in Brown, led the Third Department to find that expungement of the records should have been granted. In the case at bar, however, similarly "unique facts" have not been shown to exist. It is true that the petitioner was acquitted under Count One, but this only establishes that the jurors in the case found that it had not been proven beyond a reasonable doubt that the petitioner "acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to his death" (New York Criminal Jury Instructions, Penal Law §125.27[l][a][x]). This finding is significant, but it is not equivalent to a finding that the torture allegations in the case, which found their way into DOCCS's files through their inclusion in the PSI, were completely without substance (compare, People v. Naranjo, 89 N.Y.2d 1047 [1997]). Unlike Brown, where the assertion that the sex offenses had occurred was unsupported by evidence and contradicted by the victim herself, in the case at bar it is evident that the allegations of torture were based on extensive evidence - such as the condition and circumstances of the body when found. In view of this, DOCCS was not precluded from making use of the torture allegations in its files.

The references in DOCCS's files to the torture of the victim are rationally based on the contents of the PSI. The petitioner has not shown that the request for expungement of the references should have been granted. Furthermore, the respondent could use the information from the PSI to determine whether the petitioner should be enrolled in the Sex Offender Counseling and Treatment Program (see, Matter of Harris v. Granger. 64 A.D.3d 837, 838 [3^rd Dept., 2009], leave to appeal denied by 13 N.Y.3d 710 [2009]). Lastly, contrary to the allegations of the petition, the Court sees no indication in the record that the petitioner has been designated, anywhere in DOCCS's files, as a "sex offender" as that term in defined in Correction Law §168-a(1). The document referring the petitioner for possible enrollment in the Sex Offender Counseling and Treatment Program contains an acknowledgment that "this inmate's crime of commitment is the a sex offense."

NOW, THEREFORE, it is hereby

ORDERED that the petition is dismissed.