People v. Persico

68 Misc.3d 919

127 N.Y.S.3d 745

The PEOPLE of the State of New York,

v.Vincent PERSICO, Defendant.

CR-040913-18SU

District Court, City of New York, New York, Suffolk County.

Decided on July 8, 2020

HONORABLE TIMOTHY D. SINI, District Attorney of Suffolk County

THE MATERA LAW FIRM, Michaelangelo Matera, Esq., Johanna Poremba, Esq., of counsel, 560 Broadhollow Road, Suite 303, District Court Bureau, Cohalan Court Complex, Melville, New York 11747, Central Islip, New York 11722

Stephen L. Ukeiley, J. Defendant stands convicted after a plea of guilty on May 19, 2020, to Sexual Misconduct with an Animal in violation of Penal Law § 130.20(3), a Class "A" misdemeanor, and was sentenced to six (6) years of probation with sex offender conditions. The defendant is currently a registered Level Two sex offender based on three (3) prior misdemeanor convictions for Sexual Abuse in the Second Degree in violation of Penal Law § 130.60(2), for having sexual contact with a minor under the age of fourteen (14) in 1998.

I. Defendant's SORA Hearing — June 12, 2020

On June 12, 2020, this Court conducted a hearing in accordance with the Sex Offender Registration Act ("SORA") pursuant to Correction Law § 168-n to determine the defendant's appropriate level of community notification as a convicted sex offender. Due to the COVID-19 Pandemic, and in accordance with the safety procedures and protocols implemented by the Governor of New York, the Chief Administrative Judge of the State, and the District Administrative Judge of the 10th Judicial District, the SORA Hearing was conducted via Skype with the consent of both counselors and the defendant. The Court, counselors, and the defendant appeared remotely. At the hearing, neither side elicited testimony from witnesses, but instead opted to rely upon the documentary evidence and oral argument.

1. The Evidence

The evidence introduced at the hearing consisted of the Risk Assessment Instrument ("RAI") prepared by the People; defendant's criminal history; Suffolk County Probation Department Digital and Multimedia Forensics Lab Digital Evidence Examination Reports; Interim Probation Summary prepared by Probation Officer Lara Watrous, dated May 15, 2020; Suffolk County Police Department Multi-system Report; report prepared by Constance Augustyn, LSCSW-R, CCSOTS, CMFSW, dated May 10, 2020; Psychological Treatment Summary reports prepared by Dr. Stephen Loomis, Ph.D., dated March 18, 2019 and June 10, 2020; and curriculum vitae of Dr. Stephen Loomis, Ph.D.

2. Position of the Parties

The RAI submitted by the People indicates a score of sixty-five (65) points which equates to a presumptive Level One (low risk to re-offend) designation.¹ However, the People request an upward departure to a Level Three designation based on the defendant's current status as a Level Two sex offender, his lack of impulse control, the nature of the current charge, and his admission to having engaged in additional, uncharged acts of sexual misconduct against minors and a dog.

In computing defendant's risk assessment, the People assessed twenty (20) points under risk factor 6, Other Victim Characteristics.

The People argue that the victim in this case, a golden doodle canine, should be considered a physically helpless victim because an animal does not have the ability to communicate, and, thus, according to the People, should be evaluated similar to a sleeping victim.

The People further assessed thirty (30) points under risk factor 9, Number and Nature of Prior Crimes, for three (3) prior Class "A" misdemeanor convictions for Sexual Abuse in the Second Degree in violation of Penal Law § 130.60(2) from 1998. In addition, under risk factor 13, Conduct While Supervised, the defendant was assessed ten (10) points due to instances of unsatisfactory compliance while on interim probation. Finally, the defendant was assessed five (5) points under risk factor 14, Release Environment, due to the fact he will be under the supervision of the Department of Probation for the remainder of his sentence.

In response, the defendant disputes the points assessed under risk factor 6. Specifically, the defendant argues that this risk factor, which pertains to "mental defect," "incapacity," or "physical helplessness" of the victim, is applicable to humans, and not the instant matter where the victim is a dog.

Defendant further argues that the People failed to demonstrate a justification for an upward departure from a Level One designation to Level Three. Alternatively, in the event the Court makes such a determination, defendant asserts that mitigating factors, such as the absence of any new charges for acts against minor children, preclude an upward departure and warrant a downward departure. Notably, even if defendant were to succeed on each and every argument countered, it is undisputed that he will continue to remain a registered sex offender as a result of his prior convictions.

II. Analysis

Under SORA, individuals convicted of certain sex offenses, including Penal Law § 130.20(3), must register with the State Division of Criminal Justice Services, which maintains a Sex Offender Registry that is available to the public (see Correction Law Art. 6-C ). The statute's legislative history provides that the "primary government interest" underlying SORA is to protect the public from sex offenders (see L. 1995, ch. 192, § 1 ["Legislative purpose or findings"]; People v. Mingo , 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ).

A SORA Hearing "determines the risk of reoffense by a person convicted of a qualifying sex offense and requires that individual to register with law enforcement officials according to that risk level" ( People v. Pettigrew , 14 N.Y.3d 406, 901 N.Y.S.2d 569, 927 N.E.2d 1053 [2010] ). At a hearing on the defendant's risk level assessment, the People bear the burden of proving facts supporting the determination sought by clear and convincing evidence (see People v. Wells , 138 A.D.3d 947, 30 N.Y.S.3d 198 [2d Dept. 2016] ).

The hearing is analogous to a sentencing determination in that the Court has latitude in the type and nature of evidence it may consider and is not bound by the formal rules of evidence ( People v. Shackelford , 2020 NY Misc. LEXIS 2775, 2020 WL 3443909 [Suffolk Cnty. Sup. Ct. June 12, 2020] ; People v. Victor R. , 186 Misc 2d 28, 715 N.Y.S.2d 283 [Bronx Cnty. Sup. Ct. 2000] ). "[F]acts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated" ( Correction Law § 168-n [3] ; see also People v. Martinez , 125 A.D.3d 735, 3 N.Y.S.3d 408 [2d Dept. 2015] ). "[I]n making the determinations the court shall review any victim's statement and any relevant materials and evidence submitted by the sex offender and the district attorney ... and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations" ( People v. Vasquez , 38 Misc.3d 408, 951 N.Y.S.2d 833 [N.Y. Cnty. Sup. Ct. 2012] [citing Correction Law § 168-n [3] ]; see generally People v. Francis , 30 N.Y.3d 737, 71 N.Y.S.3d 394, 94 N.E.3d 882 [2018] ).

1. Due Process Was Afforded the Defendant

Due to the fact a SORA Hearing is regulatory in nature, rather than a criminal proceeding, and is "[n]ot intended to serve as a form of punishment" (see People v. Gravino , 14 N.Y.3d 546, 902 N.Y.S.2d 851, 928 N.E.2d 1048 [2010] ; Pettigrew , supra ), "the due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial" ( Doe v. Pataki , 3 F.Supp.2d 456, 470 [SD.N.Y. 1998] ; see People v. Gutierrez-Lucero , 103 A.D.3d 89, 98, 956 N.Y.S.2d 131 [2d Dept. 2012] ). However, a sex offender is entitled to certain fundamental due process protections, including notice and an opportunity to be heard.

More specifically, these rights include: (1) a judicial determination of risk level designation; (2) adequate notice of the classification proceeding; (3) notice of the proceeding, including a statement of its purpose; (4) advice of counsel; (5) pre-hearing discovery; (6) proof of the facts supporting each risk factor by clear and convincing evidence; and (7) a right of appeal (see Correction Law § 168-n ; People v. David W. , 95 N.Y.2d 130, 711 N.Y.S.2d 134, 733 N.E.2d 206 [2000] ). The Court finds that the defendant was afforded due process in that he received adequate notice of the classification proceeding, was represented by counsel, was given ample opportunity to review the documents submitted by the People, and was afforded the opportunity to be heard. Moreover, in rendering its determination, the Court shall only consider the evidence introduced at the SORA Hearing, and the arguments made by counsel (see People v. McClinton , 153 A.D.3d 738, 61 N.Y.S.3d 57 [2d Dept. 2017] ).

2. Defendant's Risk Assessment Score

The Court finds that the People established by clear and convincing evidence forty-five (45) of the sixty-five (65) points assessed in their RAI, which correlates to a Level One sex offender. As discussed below, the Court deducted twenty (20) points under risk factor 6, and affirmed the assessed points in all other respects.

A. Defendant is Assessed Forty-Five (45) Points

In computing the risk assessment, the defendant was properly assessed thirty (30) points under risk factor 9 for his prior convictions of Sexual Abuse in the Second Degree. Contrary to defendant's assertion, his New York State Identification Number Repository Inquiry Report ("NYSID") clearly indicates that he was convicted on April 15, 1998 of three (3) separate counts of violating Penal Law § 130.60(2), Sexual Abuse in the Second Degree, and was sentenced to three (3) years of probation (People's Exhibit 5). Defendant offered no credible evidence to refute the accuracy of the convictions reflected on the NYSID.

The defendant was further appropriately...