People v. Covington

59 Misc.3d 385

72 N.Y.S.3d 396

The PEOPLE of the State of New York, Plaintiff,

v.Orlando COVINGTON, Defendant.

18–09005

Supreme Court, Westchester County, New York.

Decided on February 9, 2018

Anthony A. Scarpino, Jr., District Attorney, White Plains (Joseph Servino Jr. of counsel), for plaintiff.

Kevin Kennedy, Yorktown Heights, for defendant.

Susan Cacace, J.

On February 6, 2018, upon the appearance of the defendant with his assigned attorney, Kevin Kennedy, Esq., and the appearance of Assistant District Attorney Joseph Servino, this Court conducted a risk level determination proceeding under the dictates of Article 6–C of the Correction Law, otherwise known as the Sex Offender Registration Act (hereinafter, SORA). Pursuant to the requirements of Correction Law § 168–k and § 168–a(2)(d)(iii), this proceeding was conducted in a manner consistent with the guidelines set forth in subdivision five of Correction Law § 168–l, which require the hearing court to determine the duration of the sex offender's registration obligations under Correction Law § 168–h, the degree of risk of re-offense presented by the sex offender insofar as same is relevant to the nature of the sex offender's notification obligations under Correction Law § 168–l(6), and the designation of the sex offender as either a "sexually violent offender", a "predicate sex offender" or a "sexual predator" within the meaning of Correction Law § 168–a(7). Upon completion of the instant SORA risk level determination proceeding, this Court makes the following findings of fact and conclusions of law:

Findings of Fact

In connection with a criminal prosecution in the Circuit Court of Henrico County, Virginia (Tidey, J.), the defendant was convicted of one count of the felony offense of Murder in the Second Degree in violation of Virginia Code Annotated (V.C.A.) § 18.2–32 following a trial without a jury under Case No. CR01–4643 on June 19, 2002 (hereinafter, the underlying conviction). The defendant was subsequently sentenced upon the underlying conviction in the Circuit Court of Henrico County, Virginia (Tidey, J.) on September 13, 2002, to terms which included the imposition of a term of imprisonment of 40 years. In connection with the underlying conviction, the trial court concluded that the adduced evidence had established that the defendant had committed the crime of Murder in the Second Degree, having been found guilty, beyond a reasonable doubt, of the willful, deliberate and premeditated killing of a person under the age of fourteen years while he was twenty-one years of age or older.

During the course of the instant risk assessment determination proceeding, the People submitted material for the Court's consideration including the Risk Assessment Instrument (RAI) prepared by the Board of Examiners of Sex Offenders (hereinafter, the Board) which was admitted into evidence as People's Exhibit No.1a, a copy of the Case Summary prepared by the Board which was admitted into evidence as People's Exhibit # 1b, a copy of Virginia Code § 18.2–31 which was admitted into evidence as People's Exhibit # 2, a copy of the Presentence Investigation Report (PSR) prepared on September 6, 2002 by the Virginia Department of Corrections which was admitted into evidence as People's Exhibit # 3, a copy of the Decision of the Court of Appeals of Virginia affirming the defendant's conviction of the underlying crime of conviction which was admitted into evidence as People's Exhibit # 4, a copy of the Henrico County Police Division Incident Crime Report which was admitted into evidence as People's Exhibit # 5, a copy of the defendant's Sentencing Order issued by the Circuit Court of Henrico County, Virginia (Tidey, J.) on September 13, 2002 which was admitted into evidence as People's Exhibit # 6, a copy of the trial decision rendered by the Circuit Court of Henrico County, Virginia (Tidey, J.) on June 1, 2002 which was admitted into evidence as People's Exhibit # 7, and a copy of the defendant's Commonwealth of Virginia Department of State Police Sex offender and Crimes Against Minors Registration Form which was admitted into evidence as People's Exhibit # 8.

In reliance upon their submission of the above-referenced materials and the oral argument they presented, the People submit that the defendant should be designated a presumptive Risk Level One sex offender based upon the allocation of fifty-five (55) points to his Total Risk Factor Score. As proposed by the People, the recommended Total Risk Factor Score of fifty-five (55) points would be derived from the allocation of thirty (30) points pursuant to RAI Risk Factor # 5 "Age of victim", ten (10) points pursuant to RAI Risk Factor # 12 "Acceptance of responsibility", and fifteen (15) points pursuant to RAI Risk Factor # 14 "Supervision". In addition, the People have moved this Court to designate the defendant a Level Three sex offender based upon the application of a SORA override based upon the defendant's responsibility for intentionally causing the death of a 3 year old child through his commission of the underlying crime of conviction.

During the course of this proceeding, the defense also submitted material for the Court's consideration, including a letter drafted by L. Hedgepeth, the defendant's Cognitive Counselor at the Coffeewood Correctional Center, which was admitted into evidence as Defense Exhibit A. In reliance upon the foregoing and the oral argument presented by counsel, the defense opposes the recommendation of the People in support of a presumptive Risk Level One designation derived from the allocation of fifty-five (55) points to his Total Risk Factor Score, arguing that the Court should allocate only a total of thirty (30) points to the defendant's Total Risk Factor Score, which would result in an unchanged presumptive Risk Level One designation. Specifically, the defense opposes the allocation of ten (10) points to the defendant's Total Risk Factor Score under RAI Risk Factor # 12, as well as the allocation of fifteen (15) points thereto pursuant to RAI Risk Factor # 14, while conceding the propriety of the allocation of thirty (30) points under RAI Risk Factor # 5. Furthermore, although the defense does not oppose the People's application of the SORA override, the defense does raise argument that the defendant should not be adjudicated as a sex offender under SORA in the State of New York pursuant to Correction Law § 168–a(2)(d)(ii) in the first instance, as his murder conviction in the State of Virginia would not have required his registration as a sex offender in the State of New York if he had committed that registerable offense in our State in reliance upon People v. Diaz , 150 AD3d 60, 61, 50 N.Y.S.3d 388. In the alternative, the defendant submits application for a downward departure from his presumptive override-based Risk Level Three designation to a Risk level One designation.

The People oppose the defendant's challenge to his adjudication as a sex offender under SORA in the State of New York, arguing that the defendant is required to register as a sex offender in our State pursuant to Correction Law § 168–a(2)(d)(ii) based upon the fact that he is required to register as a sex offender in the jurisdiction in which the underlying conviction occurred, that being the State of Virginia, and further based upon argument that the instant proceeding is framed by facts which are distinct from those upon which the Diaz Court relied when holding that the defendant in that case was not required to register as a sex offender under SORA.

Upon consideration of the foregoing arguments, the Court will first address the defendant's challenge to his designation as a sex offender under Article 6–C of the Correction Law, and thereafter, if necessary, the Court will address the calculation of the defendant's SORA Total Risk Factor Score, the People's application for an override, and the defendant's application of a downward departure from the defendant's presumptive SORA Risk Level designation.

Conclusions of Law

Pursuant to the explicit terms of Correction Law § 168–a(2)(d)(ii), the defendant is statutorily required to register as a sex offender in the State of New York as a consequence of his conviction in the Commonwealth of Virginia of the crime of Murder in the Second Degree which was based upon the defendant's intentional killing of a male child who was three (3) years-of-age (hereinafter, the underlying crime), as the defendant's conviction of that underlying crime obligated him to register in the Commonwealth of Virginia under its Sex Offender and Crimes Against Minors Registry Act ( Va. Code Ann § 9.1–900 et seq ). However, despite the clear meaning of Correction Law § 168–a(2)(d)(ii) to establish that the defendant's underlying crime is defined as a "sex offense" under SORA, and the uncontested applicability of the statute to the defendant as a consequence of his conviction of the underlying crime without regard to the absence of any element(s) of a sexual nature of that qualifying conviction (see People v. Knox , 12 N.Y.3d 60, 65, 875 N.Y.S.2d 828, 903 N.E.2d 1149 ), the defendant argues that the holding of the Appellate Division, First Department in People v. Diaz , 150 A.D.3d at 61, 50 N.Y.S.3d 388) mandates that he be excused from his sex offender registration requirements under SORA in the State of New York. Specifically, the defendant argues that he should not be required to comply with the registration requirements of SORA because his underlying crime was not defined by any elements of a sexual nature, which he advances as the basis upon which the Court in People v. Diaz relied to reach its determination that the application of the SORA registration requirements to a defendant who had murdered his minor 15 year old half-sister, but had not sexually offended against her in any known manner, violated the defendant's substantive due process rights under the Federal and New York State Constitutions because...