| People v Ferrer |
| 2010 NY Slip Op 00555 [69 AD3d 513] |
| January 26, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Hector Ferrer, Appellant. |
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Order, Supreme Court, New York County (James A. Yates, J.), entered on or about April 16,2008, which adjudicated defendant a level two sex offender pursuant to the Sex OffenderRegistration Act (SORA) (Correction Law art 6-C), unanimously affirmed, without costs.
At the SORA classification hearing, defendant introduced expert testimony challenging theaccuracy of the risk assessment instrument (RAI) in predicting the risk of recidivism, andpresenting other factors that the expert viewed as better predictors of risk. The expert testified,among other things, that New York's RAI is unreliable and is not generally accepted in thescientific community. The expert cited a number of methodological defects in the RAI,emphasizing that it assigns a particular number of points for each risk factor without employingvalid statistical data demonstrating the relationship between that factor and actual recidivismamong a population of sex offenders. According to the expert, an actuarial risk assessmentinstrument known as the STATIC-99 (see Matter of State of New York v Rosado, 25 Misc 3d 380,388-394 [Sup Ct, Bronx County 2009] [extensive discussion of STATIC-99]) is based on validempirical data and would be an appropriate tool of assessment, unlike the RAI. Defendant alsopresented testimony that, had he been evaluated under the STATIC-99, he would have shown arelatively low risk of recidivism.
Defendant argues that the RAI is scientifically invalid, and that he was therefore deprived ofdue process by its use. Although, as discussed below, his point score makes him a level twooffender, he seeks a reduction to level one, either as the default level on the basis of rejection ofthe RAI, or by affirmatively substituting his claimed STATIC-99 score to find a "low" risk ofreoffense. Defendant has not cast his argument as a request for a discretionary downwarddeparture; instead he argues that use of the RAI is erroneous as a matter of law.
Regardless of whether the RAI is the optimal tool of predicting recidivism, or whetheranother instrument might be better, defendant has not shown that the use of the RAI isunconstitutional. In imposing civil restrictions on liberty based on predictions of futuredangerousness, governments have considerable latitude that does not necessarily "depend[ ] onthe research conducted by the psychiatric community" (Jones v United States, 463 US354, 365 n 13[*2][1983]; see also Kansas v Hendricks,521 US 346, 360 n 3 [1997]). Moreover, as defendant acknowledges in his reply brief, the risklevel designated in the RAI is merely presumptive, and a court may depart from it as a matter ofdiscretion (People v Mingo, 12NY3d 563, 568 n 2 [2009]; Peoplev Johnson, 11 NY3d 416, 418, 421 [2008]). Here, the hearing court's decision indicatesthat it weighed the RAI against the defense evidence and arguments, and that it properlyconcluded that defendant had a moderate risk of reoffense, so that a level two assessment wasappropriate.
Defendant alternatively argues that even under the RAI there were insufficient pointsestablished to qualify him as a level two offender. Although our analysis differs somewhat fromthat of the hearing court (see People vLarkin, 66 AD3d 592 [2009]), we find that the People met their burden of establishing,by clear and convincing evidence, risk factors bearing a total score of 75 points, which supportsa level two adjudication. The court should not have assessed 15 points for drug abuse, sincedefendant had been abstinent for an 18-year period and was not abusing drugs at the time of theoffense. However, we find that the court should have assessed 10 points for defendant's failure toaccept responsibility for his crime, notwithstanding his guilty plea, since both the presentencereport and the case summary indicated that he denied committing the offense and declared thathe had pleaded guilty as a matter of expediency. Defendant's argument concerning thesufficiency of the proof of the age of the victim at the time of the underlying sex crime is withoutmerit (see People v Mingo, 12 NY3d at 573).
We have considered and rejected defendant's remaining claims. Concur—Tom, J.P.,Saxe, Nardelli, Renwick and Freedman, JJ.