People v. Norris

2024 NY Slip Op 00213

The People of the State of New York, Respondent. v. Rayshawn J. Norris, Appellant.

No. 535479

Supreme Court of New York, Third Department

January 18, 2024

Calendar Date:December 14, 2023

Michael T. Baker, Public Defender, Binghamton (Sarah M. Seese of counsel), for appellant.

F Paul Battisti, District Attorney, Binghamton (Geoffrey B Rossi of counsel), for respondent.

Before: Egan Jr., J.P., Pritzker, Ceresia, Fisher and Powers, JJ.

Egan Jr., J.P.

Appeal from an order of the County Court of Broome County (Joseph F. Cawley, J.), entered February 25, 2022, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

In 2010, defendant forcibly raped a 59-year-old woman in her home. Defendant was thereafter charged in a five-count indictment with rape in the first degree, sexual abuse in the first degree, predatory sexual assault, robbery in the first degree and burglary in the first degree. In 2012, defendant pleaded guilty to rape in the first degree in satisfaction of the indictment, and was sentenced to an agreed-upon prison term of 11½ years followed by 20 years of postrelease supervision. In anticipation of his release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI) pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]) that assigned him a total of 100 points presumptively classifying him as a risk level two sex offender. The People prepared their own RAI assigning a total of 120 points, presumptively classifying defendant as a risk level three sex offender, by adding 10 points under risk factor 12 (failure to accept responsibility) and 10 points under risk factor 13 (conduct while confined). Alternatively, the People argued that an upward departure to a risk level three was warranted. Following a hearing, County Court found that defendant was presumptively classified as a risk level two sex offender, but granted the People's request for an upward departure to a risk level three sex offender classification, with a sexually violent offender designation. Defendant appeals.

We affirm. Defendant does not challenge the assessment of points presumptively classifying him as a risk level two sex offender, but argues that County Court improperly granted the People's request for an upward departure to a risk level three classification. "An upward departure from a presumptive risk level classification is justified when an aggravating factor exists that is not otherwise adequately taken into account by the risk assessment guidelines and the court finds that such factor is supported by clear and convincing evidence" (People v Richardson, 209 A.D.3d 1068, 1069 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 39 N.Y.3d 908 [2023]; see People v Waters, 198 A.D.3d 1024, 1025 [3d Dept 2021], lv denied 37 N.Y.3d 919 [2022]). "An aggravating factor, in turn, is one which tends to establish a higher likelihood of reoffense or danger to the community than the presumptive risk level calculated on the [RAI]" (People v Perry, 174 A.D.3d 1234, 1235 [3d Dept 2019] [internal quotation marks, ellipsis, brackets and citations omitted], lv denied 34 N.Y.3d 905 [2019]; see People v Curry, 208 A.D.3d 1560, 1561 [3d Dept 2022], lv denied 39 N.Y.3d 905 [2022]). Upon such a showing, "the court makes a discretionary determination whether the overall circumstances warrant a departure to prevent an underassessment of the offender's risk of sexual recidivism and dangerousness" (People v Remonda, 158 A.D.3d 904, 904-905 [3d Dept 2018] [internal quotation marks and citation omitted], lv denied 31 N.Y.3d 910 [2018]). "When assessing whether an upward departure is warranted, the court may consider reliable hearsay evidence such as the case summary, presentence investigation report and [RAI], as well as [statements made by the victim or defendant to law enforcement,] the defendant's past misconduct and any other proof that a reasonable person would deem trustworthy" (People v Curry, 208 A.D.3d at 1561 [internal quotation marks, brackets and citations omitted]; see Correction Law §§ 168-d [3]; 168-n [3]; People v Mingo, 12 N.Y.3d 563, 571-572 [2009]).

In granting an upward departure, County Court found that the People established by clear and convincing evidence various aggravating factors that were not adequately taken into account in the RAI; namely, the "heinous, violent, and premeditated nature of" defendant's conduct, his concurrent offenses and his subsequent youthful offender adjudication. To that end, the court relied upon the People's submissions, which included the victim's and defendant's respective statements to police and the Board's case summary, establishing that he entered the victim's home under false pretenses and lured her to the basement, where he bound, gagged and repeatedly raped her while threatening her with a box cutter and demanding money. The court noted defendant's "chilling" written admission that he raped the victim because he had not found any money and "didn't want to leave without getting something." Although defendant was assessed points under risk factor 1 of the RAI for his use of a dangerous instrument, we agree that the depraved nature of his crime was not accurately captured by the guidelines (see People v Johnson, 205 A.D.3d 1236, 1238 [3d Dept 2022]; People v Auleta, 135 A.D.3d 1251, 1252-1253 [3d Dept 2016], lv denied 27 N.Y.3d 903 [2016]).

As to defendant's concurrent offenses, the relevant risk factor under the RAI addresses only "prior criminal history," and "concurrent or subsequent criminal history... may be the basis for an upward departure if it is indicative... [of] an increased risk to public safety" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 14 [2006]). Accordingly, contrary to defendant's contentions, County Court did not err in considering evidence of defendant's commission of robbery in the first degree and burglary in the first degree in connection with his underlying SORA conviction, as these were concurrent offenses for which he was charged but not convicted as a result of his negotiated plea (see People v Maurer, 220 A.D.3d 1061, 1063 [3d Dept 2023]; People v Davis, 166 A.D.3d 820, 821 [2d Dept 2018]).

Further the case summary and defendant's presentence report reflect defendant's subsequent youthful offender adjudication in connection with a separate burglary in Alabama. A youthful offender adjudication may not be used in the assessment of points for criminal history under the RAI, but may be "considered when...