| People v Diaz |
| 2012 NY Slip Op 07787 [100 AD3d 1491] |
| November 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Carlos Diaz,Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), entered March21, 2011. The order determined that defendant is a level three risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from is modified on the law by determiningthat defendant is a level two risk pursuant to the Sex Offender Registration Act and as modifiedthe order is affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three riskunder the Sex Offender Registration Act (Correction Law § 168 et seq.). Althoughthe risk assessment instrument (RAI) assessed defendant as a level two risk, the Board ofExaminers of Sex Offenders recommended an upward departure based on the pattern ofdefendant's sexual offenses and his diagnosis of schizophrenia. County Court concluded that anupward departure was warranted and thus determined that defendant is a level three risk. Thatwas error.
"A court may make an upward departure from a presumptive risk level when, afterconsideration of the indicated factors[,] . . . [the court determines that] there existsan aggravating . . . factor of a kind, or to a degree, not otherwise adequately takeninto account by the [risk assessment] guidelines" (People v Abraham, 39 AD3d 1208, 1209 [2007] [internal quotationmarks omitted]; see People v Grady,81 AD3d 1464, 1464 [2011]). Here, the court erred by basing its upward departure onfactors already taken into account by the RAI, i.e., the short period of time between defendant'soffenses and defendant's pattern of touching the victims under their clothing, targeting strangersand using forcible compulsion. Additionally, the court erred in relying on defendant's allegedmental illness to justify the upward departure inasmuch as the record contains no admissibleevidence that defendant in fact suffers from a mental illness, and the record is devoid of evidencethat the alleged mental illness is " 'causally related to any risk of reoffense' " (People v Perkins, 35 AD3d 1167,1168 [2006]; see Grady, 81 AD3d at 1465; see generally Correction Law §168-n [3]; People v Hayward, 52AD3d 1243, 1244 [2008]). Thus, we conclude that defendant is properly classified as a leveltwo risk (see Perkins, 35 AD3d at 1168), and we therefore modify the order accordingly.[*2]
All concur except Fahey, J., who dissents and votes toaffirm in the following memorandum: I respectfully dissent and would affirm. Here, CountyCourt determined that defendant was a level three risk based upon two prior sexual offensescommitted by him. The first of defendant's sexual offenses occurred when he was in an inpatientpsychiatric unit. Defendant pushed his victim, a social worker, into a restroom and touched herbuttocks and vaginal areas. The second sexual offense also involved defendant's use ofaggression against his victim. In that incident, defendant followed a woman who was a strangerto him into a building and onto an elevator. When the woman exited the elevator with defendant,he told her that he needed a hug. The woman refused, and defendant then pinned her against awall, pulled up her dress, and touched her vagina and anus under her clothing.
Shortly before defendant's release from incarceration, the Board of Examiners of SexOffenders (Board) prepared a risk assessment instrument (RAI), wherein it assigned defendantpoints under the following risk factors: 1 (use of violence [forcible compulsion]); 2 (sexualcontact with victim [under clothing]); 7 (relationship with victim [stranger]); 8 (age of firstsexual misconduct 20 or less); 9 (number of prior crimes [prior violent felony or misdemeanorsex crime]); 10 (recency of prior offense less than three years); and 11 (drug or alcohol abuse[history of abuse]). The Board determined that defendant had a risk assessment score of 105points, which placed him at the high end of the range for a level two risk pursuant to the SexOffender Registration Act ([SORA] Correction Law § 168 et seq.). The Board,however, recommended an upward departure from the presumptive risk level based on thepattern of defendant's sexual offenses, his diagnosis of schizophrenia, and his history ofmarihuana abuse. Relying on the Board's case summary, the court determined that defendant is alevel three risk based on defendant's conviction of "forcibly sexually abusing two women whowere strangers to him," his "diagnosis of a serious mental disorder and [his] history of abuse ofmarijuana."
"A court may make an upward departure from a presumptive risk level when, afterconsideration of the indicated factors . . . [,] there exists an aggravating. . . factor of a kind, or to a degree, not otherwise adequately taken into account bythe [risk assessment] guidelines" (People v Hueber, 81 AD3d 1466, 1467 [2011], lv denied 17NY3d 701 [2011], cert denied 565 US —, 132 S Ct 294 [2011] [internal quotationmarks omitted]). " 'The People bear the burden of establishing the appropriate risk levelclassification by clear and convincing evidence [and] [s]uch evidence may consist of reliablehearsay including, among other things, the presentence investigation report, [RAI] and casesummary' " (People v McFall, 93AD3d 962, 963 [2012]; see Correction Law § 168-n [3]; People v Pettigrew, 14 NY3d 406,409 [2010]).
Here, the People met their burden of establishing that an aggravating factor not accounted forin the RAI existed, warranting an upward departure from the presumptive risk level. Althoughthe court relied upon factors accounted for in the RAI, i.e., defendant's drug abuse, use of forciblecompulsion and his targeting of strangers, as a basis for the upward departure, the court alsorelied on a factor not accounted for in the RAI, i.e., defendant's serious mental disorder. In myview, that factor supports the court's determination to make an upward departure. Thereshould be no dispute that schizophrenia is marked by a breakdown of thought processes and pooremotional responses and typically manifests itself in disorganized thinking and socialdysfunction. That disorder, coupled with the nature of defendant's attacks—he appears tostruggle with social boundaries and is prone to preying on women who arealone—compels the conclusion that defendant should be subjected to greater scrutiny solong as he is free within the community.
Finally, I cannot agree with the majority that the record does not support the conclusion thatdefendant's significant mental disorder is causally related to his risk of reoffense. While there isno requirement that the unsigned case summary to which the majority refers always be [*3]credited, it "meet[s] the 'reliable hearsay' standard for admissibilityat SORA proceedings" and thus was properly considered by the court (People v Mingo, 12 NY3d 563,573 [2009]; see Pettigrew, 14 NY3d at 408-409). In my view, the connection betweendefendant's schizophrenia and his risk of reoffending implied in the case summary is neitherunduly speculative nor undermined by other more compelling evidence (cf. Mingo, 12NY3d at 572-573). I would thus affirm. Present—Centra, J.P., Fahey, Peradotto, Carni andSconiers, JJ.