| People v Grimm |
| 2013 NY Slip Op 04051 [107 AD3d 1040] |
| June 6, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vRaymond B. Grimm, Appellant. (And Another RelatedAction.) |
—[*1] James R. Farrell, District Attorney, Monticello (Katy M. Schlictman of counsel), forrespondent.
Garry, J. Appeals (1) from a judgment of the County Court of Sullivan County(McGuire, J.), rendered April 8, 2011, upon a verdict convicting defendant of the crimeof sexual abuse in the second degree, and (2) from an order of said court, entered June 9,2011, which classified defendant as a risk level three sex offender pursuant to the SexOffender Registration Act.
Defendant was charged in a seven-count indictment with crimes arising from hisalleged sexual abuse of a child, and thereafter pleaded guilty to two of the charges. Onappeal, this Court reversed the judgment of conviction and vacated defendant's plea (69AD3d 1231 [2010]). Following a jury trial, he was convicted of sexual abuse in thesecond degree and sentenced to time served. County Court conducted a hearing pursuantto the Sex Offender Registration Act (see Correction Law art 6-C [hereinafterSORA]) and issued an order determining that defendant was a risk level three sexoffender. He appeals from that order and from the judgment of conviction.
Defendant challenges his conviction on the sole ground that County Court erred bydismissing a sworn juror (see CPL 270.35). During the trial, a juror advised thecourt that, after hearing the testimony of several witnesses, he had belatedly realized thathe might have a familial [*2]relationship with defendant.After a detailed inquiry, the court determined that the juror was related to defendant andalso to defendant's wife—a prospective witness—in such a manner that hewould have been subject to a challenge for cause if these relationships had been knownbefore he was sworn (see CPL 270.20 [1] [c]; People v Walters, 12 AD3d953, 954 [2004]). Defendant now contends that the court did not conduct asufficient inquiry into the effect of these relationships on the juror's impartiality (seePeople v Buford, 69 NY2d 290, 299 [1987]), but as he neither raised this claim attrial nor otherwise objected to the inquiry, the issue is unpreserved (see People v Hicks, 6 NY3d737, 739 [2005]; People vThompson, 92 AD3d 1139, 1141 [2012], lv granted 19 NY3d 977[2012]; People vCecunjanin, 67 AD3d 1072, 1077 [2009], mod on other grounds 16NY3d 488 [2011]; People vKelly, 65 AD3d 714, 715 [2009], lv denied 13 NY3d 860 [2009]). Wenote that the court repeatedly offered to permit counsel to research and brief the legalissues overnight as an alternative to dismissing the juror, but defense counsel did notavail himself of this option. Instead, after extensive discussion with the prosecutor andthe court, consultation with defendant, and a final reiteration from the court of theopportunity to brief the issues before a determination was made, counsel consented to thejuror's removal stating, "[W]e are satisfied with the law as recited. We're ready toproceed." The record thus reveals that the juror was not removed "over defendant'sobjection" and no modification in the interest of justice is warranted (People vBuford, 69 NY2d at 298; see People v Viera, 75 AD3d 926, 927 [2010]).
Defendant next contends that County Court improperly conducted the SORA hearingwithout obtaining a recommendation from the Board of Examiners of Sex Offenders. Asa result of defendant's previous guilty plea and appeal, he had been incarcerated in theSullivan County Jail for approximately 44 months prior to his conviction, in February2011, of a class A misdemeanor—which carries a maximum sentence of one year.The court thus released him immediately after the verdict and, in April 2011, sentencedhim to time served. Thereafter, the People submitted a risk assessment instrument(hereinafter RAI) completed by the Probation Department and, as recommended in theRAI, requested a level three risk assessment as an upward departure from a presumptiverisk level two assessment. At the SORA hearing conducted thereafter in May 2011,defense counsel objected that the RAI should have been completed by theBoard.[FN1]After adjourning the hearing to address this claim, the court issued a decision interpretingthe pertinent provisions of SORA to permit a judicial assessment of defendant's risk levelwithout the Board's involvement. We reject defendant's contention that the court erred inthis determination.
The SORA statutory scheme sets out separate procedures for judicial determinationof a sex offender's risk level depending upon the nature of the offender's sentence. Whenthe offender is "released on probation or discharged upon payment of a fine, conditionaldischarge or unconditional discharge," the court makes the risk level determinationwithout Board involvement, following the District Attorney's submission of a statementof the risk level sought by the People (Correction Law § 168-d [3]; seeMark Bonacquist, 2002 Practice Commentaries, McKinney's Cons Laws of NY, Book10B, Correction Law art 6-C at 270). When the offender is incarcerated, the court makesthe determination "after receiving a recommendation from the [B]oard" and before theoffender's "discharge, parole, release to post-release supervision or [*3]release" (Correction Law § 168-n [1]; seeCorrection Law § 168-l [6]). Here, neither of these statutory provisionswas directly applicable. Defendant was not released under any of the conditions specifiedin Correction Law § 168-d (3), but was instead sentenced to a term ofincarceration; however, the statutory procedures for obtaining a Board recommendationbefore his discharge could not be followed as his incarceration ended on the day of hisconviction (see Correction Law §§ 168-l [6]; 168-n [1], [2]).In these exceptional circumstances, County Court was thus required to interpret SORA todetermine the most appropriate procedure.
Although SORA charges the Board with responsibility for making a risk levelrecommendation relative to incarcerated offenders, the ultimate responsibility for the risklevel determination is vested in the sentencing court, which " 'in the exercise of itsdiscretion, may depart from [the Board's] recommendation and determine the sexoffender's risk level based upon the facts and circumstances that appear in the record' "(Matter of VanDover v Czajka, 276 AD2d 945, 946 [2000], quoting Matterof New York State Bd. of Examiners of Sex Offenders v Ransom, 249 AD2d 891,892 [1998]; see People vJohnson, 11 NY3d 416, 421 [2008]). In our view, this judicial obligationnecessarily includes the authority to determine the appropriate procedure for a risk leveldetermination where, as here, the circumstances are not fully addressed by the SORAstatutory scheme. This conclusion is supported by the statutory provisions addressingfailures by the Board to complete its statutory obligation; where the Board fails to issue atimely recommendation, SORA provides that the court must nonetheless make a risklevel determination and, if it cannot do so before the offender is discharged, must"expeditiously complete the hearing and issue its determination" after his or her release(Correction Law § 168-l [8]). In effect, that is the procedure that CountyCourt followed here. Likewise, the Board's erroneous completion of an RAI may beharmless if the court reviews the relevant evidence and bases its determination of thedefendant's risk level on clear and convincing evidence (see People v Carpenter, 63AD3d 1320, 1322 [2009], lv denied 13 NY3d 704 [2009]; People v McClelland, 38AD3d 1274, 1275 [2007]; People v Sanchez, 20 AD3d 693, 694 [2005]). In theunusual circumstances presented here, we find that County Court did not exceed itsstatutory authority in deciding that the appropriate procedures for determiningdefendant's risk level were those established by Correction Law § 168-d (3) fordischarged offenders.
The RAI completed by the Probation Department assessed 95 points againstdefendant, resulting in a presumptive risk level two classification, and recommended anupward departure to level three. Defendant challenges County Court's decision todesignate him as a risk level three sex offender, and asserts that he should instead havebeen classified at risk level one. We find that 10 points were properly assessed fordefendant's failure to take responsibility for his actions, as he continued to deny that hehad committed any crime following his conviction.[FN2]This risk factor was thus supported by clear and convincing evidence (see People v Rogowski, 96AD3d 1113, 1114 [2012]; People v Legall, 63 AD3d 1305, 1306 [2009], lvdenied 13 NY3d 706 [2009]).[*4]
We further reject defendant's claim that theassessment of 15 points for his release without supervision was punitive, as he hadalready served a 44-month term of incarceration. The risk assessment guidelines are notdesigned to punish, but "to assess the risk of a repeat offense by such sex offender andthe threat posed to the public safety" (Correction Law § 168-l [5]; see People v Burke, 68 AD3d1175, 1176 [2009]). The guidelines emphasize the importance of strict supervisionto avoid repeat offenses when sex offenders are released into the community (seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17[2006]). As there is no dispute that defendant was under no such form of supervisionfollowing his release, the proper score was assigned to this factor (see People v Ramirez, 53AD3d 990, 991 [2008], lv denied 11 NY3d 710 [2008]). Defendant raisesno challenge to the remaining assessments recommended in the RAI; thus, hisclassification as a risk level two sex offender is supported by clear and convincingevidence.
However, we agree with defendant that County Court erred in assessing additionalpoints that resulted in his classification as a risk level three sex offender. In its writtendecision, the court assessed 20 points based upon defendant's prior victims, relative tosexual offenses occurring in the 1980s. However, the guidelines specify that thiscategory focuses upon the number of victims underlying the instant conviction(see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 10 [2006]). The People did not claim that the current offense involvedmultiple victims, and defendant had already been assessed the maximum number ofpoints for his prior criminal history. Further, County Court assessed 20 points under riskfactor 7 for defendant's relationship with the victim. This factor is directed atcircumstances where the offender and the victim are strangers, where the offenderestablished or promoted the relationship for the purpose of victimization, or where aprofessional relationship was abused, as such circumstances present "a heightenedconcern for public safety and need for community notification" (Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary at 12 [2006]; see People v Duart, 84 AD3d908, 909 [2011], lv dismissed 17 NY3d 916 [2011]; People v Cuesta, 65 AD3d1113, 1114 [2009]; Peoplev Milton, 55 AD3d 1073, 1073 [2008]). As these circumstances were notpresented, these points were improperly assessed (see People v Fisher, 22 AD3d 358, 359 [2005]).
Peters, P.J., Lahtinen and Stein, JJ., concur. Ordered that the judgment is affirmed.Ordered that the order is reversed, on the law, without costs, and defendant is classifiedas a risk level two sex offender under the Sex Offender Registration Act.
Footnote 1: Notably, defendant didnot previously object when, during the April 2011 sentencing, County Court outlined itsplan to have the RAI be prepared by the Probation Department.
Footnote 2: Notably, defendant hadpreviously given police a sworn statement admitting that sexual contact had occurred, butclaiming that the victim—then aged 11—had initiated it. The presentenceinvestigation report revealed that in his two previous sexual offenses, he had likewiseinitially admitted the conduct, blamed it on his child victims, and later recanted hisadmissions.