| People v Watson |
| 2013 NY Slip Op 08379 [112 AD3d 501] |
| December 17, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Watson, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi-Levi of counsel),for respondent.
Order, Supreme Court, New York County (Cassandra M. Mullen, J.), entered on orabout November 15, 2010, which adjudicated defendant a level three sexually violentoffender pursuant to the Sex Offender Registration Act (SORA; Correction Law art 6-C),unanimously affirmed, without costs.
Defendant, who seeks to have his sex offender status under SORA reduced from alevel three to a level two, argues that 15 points were improperly assessed against him for"a history of drug or alcohol abuse" on the ground that he abstained from alcohol usewhile incarcerated for a crime he admittedly committed while he was drunk.Alternatively, he argues that the SORA court failed to take into consideration hisunblemished record while incarcerated and other positive attributes which warranted adownward departure classifying him as only a moderate risk of re-offense or threat to thepublic.
This appeal was brought before the recent Court of Appeals decision in People v Palmer (20 NY3d373, 378-379 [2013]) which held that "only alcohol abusers should be. . . assessed a higher point level under the SORA Guidelines, as opposed tooccasional, moderate social drinkers." Defendant, however, makes it clear that thedistinctions regarding alcohol use and abuse in that decision have no bearing in this case,nor do they apply to reduce his SORA assessment.
In assessing a sex offender's danger to the community, and therefore, itsrecommendation to the court hearing a SORA application, the Board of Examiners ofSex Offenders (BOSE) must consider 15 statutory factors, applying them in accordancewith the risk assessment guidelines developed to assess an individual applicant's risk of arepeat offense (Correction Law § 168-l [5]; Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary at 3 [2006]). The evaluation is madeusing a risk assessment instrument (RAI), identifying each factor which, if applicable, isassigned a numerical value. If a particular factor is not applicable, it is assessed at zero.The values are then tallied, resulting in a recommended risk assessment which isconsidered as presumptively correct at the SORA hearing before the court (see People v Ratcliff, 107AD3d 476 [1st Dept 2013]).
One of the factors BOSE considers is "whether the sex offender's conduct was foundto be characterized by repetitive and compulsive behavior, associated with drugs oralcohol" (Correction Law § 168-l [5] [a] [ii]). The guidelines clarify that ifthe individual has a history of drug or alcohol abuse "or was abusing drugs and oralcohol at the time of the offense," 15 points will be assessed in that category (SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]).Pursuant to the guidelines, BOSE or the court may choose to score zero points in thiscategory, if the drug and/or alcohol abuse is "in the distant past, but [the defendant's]more recent history is one of prolonged abstinence" (id.).
Since defendant admittedly committed his crime while intoxicated, this alonesupports the 15 point assessment made against him in this category (see People v Birch, 99 AD3d422 [1st Dept 2012]). Thus the issue turns on whether his prolonged abstinencefrom alcohol use, while incarcerated, provides a basis for a 15 point reduction in thiscategory. We find that it does not.
We have consistently held that even when alcohol use in the commission of the crimeis remote in time, and the defendant has abstained from alcohol use for a prolongedperiod while incarcerated, such remoteness and abstinence are unreliable predictors ofthe risk for re-offense postrelease, or to the threat posed by the sex offender to publicsafety (see Birch, 99 AD3d at 423, citing People v Gonzalez, 48 AD3d 284, 285 [1st Dept 2008],lv denied 10 NY3d 711 [2008]). Here, defendant, who was incarcerated for 22years and has been at liberty only for a relatively short period of time, has not shown thathis adherence to the regimen, routine and requirements of prison life have any bearing onwhat his behavior will be now that he is no longer under such supervision (see Peoplev Gonzalez, 48 AD3d at 285). Accordingly, the points for alcohol abuse wereproperly assessed and the SORA court correctly rejected defendant's argument that hisabstinence shows he is at a lowered risk for a repeat offense.
The SORA court also providently exercised its discretion in denying defendant'sapplication for a discretionary downward departure to a level two based upon claims thathe had an exemplary record while incarcerated, has shown remorse for his crime, and isnow a productive member of society (see People v Cintron, 12 NY3d 60, 70[2009], cert denied 558 US 1011 [2009]; People v Johnson, 11 NY3d 416, 418, 421 [2008]). Therecord shows that defendant's good behavior was accounted for under the RAI. Factorswhich otherwise would have required the assignment of numerical values had heengaged in unsatisfactory conduct while incarcerated, were assessed at "zero"(see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 16 [2006]; compare People v Perez, 104 AD3d 403 [1st Dept 2013],lv denied 21 NY3d 858 [2013]). In other words, because of defendant's goodbehavior in prison, there were no additional points imposed for an increased "potentialfor sexual recidivism" (People vSalley, 67 AD3d 525, 526 [1st Dept 2009], lv denied 14 NY3d 703[2010]).
We emphasize that a SORA risk-level determination is not an extended form ofpunishment for the sex crime committed, but a collateral consequence of the convictionintended to protect the public at large from the possibility of future crime (People v Gravino, 14 NY3d546 [2010]). A departure from a sex offender's presumptive risk level is generallywarranted only where "there exists an aggravating or mitigating factor of a kind, or to adegree, that is otherwise not adequately taken into account by the guidelines" (SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; see People v Johnson, 11NY3d 416, 421 [2008];People v Martinez-Guzman, 109 AD3d 462 [2d Dept 2013], lv denied 22 NY3d 854 [2013]). Although defendant's exemplary conduct in prison and his [*2]cooperation with prison authorities during a crisis arecommendable, there is no evidence that this conduct further reduces his risk of re-offensebelow what is otherwise identified by the RAI. Concur—Sweeny, J.P., Moskowitz,Richter, DeGrasse and Gische, JJ.