People v. Rodriguez

196 A.D.3d 43

148 N.Y.S.3d 247

PEOPLE of State of New York, respondent,

v.Bernabe RODRIGUEZ, etc., appellant.

2018–08632

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 4, 2019

June 2, 2021

Clare J. Degnan, White Plains, N.Y. (Salvatore A. Gaetani of counsel), for appellant.

Miriam E. Rocah, District Attorney, White Plains, N.Y. (Christine DiSalvo, Steven A. Bender, and William C. Milaccio of counsel), for respondent.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, MARK C. DILLON, ANGELA G. IANNACCI, JJ.

OPINION & ORDER

MASTRO, J.P.

In the present appeal, we are confronted with the question of whether the existence of a familial relationship between a sex offender and his or her victim, standing alone, provides an adequate basis under the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA) to warrant an upward departure from the presumptive risk level for the offender as assessed by the Board of Examiners of Sex Offenders (hereinafter the Board). Upon our review of relevant decisions and the SORA: Risk Assessment Guidelines and Commentary (2006) (hereinafter Guidelines), we conclude that the mere existence of such a familial relationship, without more, does not constitute a valid basis for an upward departure, and we take this opportunity to clarify our case law in this area. We further determine that since the People presented clear and convincing evidence of additional and independent aggravating circumstances to justify the upward departure in this case, the order granting that departure should be affirmed.

Factual Background

By Westchester County Indictment No. 09–1587, the then 32–year–old appellant was charged with two counts of course of sexual conduct against a child in the first degree, rape in the first degree, criminal sexual act in the first degree, and four counts of endangering the welfare of a child. The charges arose from the appellant's commission of a series of horrific acts of sexual intercourse, oral sexual conduct, and anal sexual conduct between September 2005 and November 2009 against his stepdaughter, a child he had raised since the age of 5, and who was only 8 years old when the abuse began. The abuse finally ended when the child revealed the events to her mother. According to the victim's grand jury testimony and the bill of particulars prepared by the Westchester County District Attorney's Office, on at least one occasion in 2009, the appellant engaged in unprotected vaginal and anal intercourse with the victim in the presence of his three biological sons, who at the time were two, five, and seven years of age (three of the original counts of endangering the welfare of a child were related to this incident). Furthermore, in a statement to the authorities after his arrest, the appellant admitted that he had regularly engaged in vaginal and anal intercourse with the victim for years, and that he had never used a condom during those assaults.

Pursuant to a negotiated plea agreement, the appellant entered a plea of guilty in 2010 to a single count of course of sexual conduct against a child in the first degree in full satisfaction of the indictment and in exchange for a determinate term of imprisonment of 10 years, to be followed by 15 years of postrelease supervision. On March 15, 2018, in anticipation of the appellant's conditional release date, the Board prepared a Risk Assessment Instrument (hereinafter RAI) which assessed a total of 90 points against the appellant, classifying him as a presumptive level two sex offender. With respect to risk factor 7 of the RAI, entitled "Relationship with victim," the Board scored 0 points against the appellant, reflecting the Board's conclusion that said risk factor did not apply to him (see Guidelines at 3 n 5). The People subsequently served notice of their intention, inter alia, to seek an upward departure to a risk level three classification for the appellant.

At the ensuing SORA hearing held in the Supreme Court on May 22, 2018, the People provided detailed evidence of the sex offenses committed by the appellant against his young victim, but agreed with the Board's assessment of 0 points under the "Relationship with victim" risk factor. However, in seeking the upward departure, the People first cited "the familial relationship between the parties," claiming that the commission of sex offenses in the family setting is characterized by a "complete and gross abuse of trust" and "immeasurably greater feelings of hopelessness for the victim." The People went on to describe the heinous, callous, and escalating nature of the appellant's conduct, observing that the appellant even subjected the child to unprotected anal and vaginal intercourse in the presence of his three young sons, one of whom was actually lying on the same bed as the appellant and the victim during the sexual assault. As the Assistant District Attorney argued, "[the appellant] had no regard for any of these children." The appellant's counsel opposed any upward departure to a risk level three classification.

In a bench decision following the hearing, and in a subsequent written decision and order entered May 24, 2018, the Supreme Court, inter alia, granted the People's request for an upward departure, and designated the appellant a level three sex offender. The court's written decision noted that the familial relationship between the appellant and the victim gave rise to an abuse of trust and to feelings of betrayal and hopelessness on the victim's part, and was not properly accounted for in the Guidelines or in the RAI. However, the court additionally referenced other aggravating circumstances in its bench decision, finding that "[t]he abuse took place in [the victim's] own home during the times when her mother was not there and in the presence of her siblings " (emphasis added), an observation which underscored the court's subsequent statement in its written decision that the appellant's conduct exhibited a "demonstrated degree of depravity."

On this appeal, the appellant challenges the granting of the upward departure, contending that it was premised solely on the familial relationship he shared with the victim, which he asserts is already taken into account by the Guidelines and therefore cannot serve as the basis for an upward departure in risk level classification. The People disagree, maintaining that since the familial relationship is not mentioned in risk factor 7 of the RAI, and since no points are assessed for it therein, that relationship constitutes a risk factor that is not adequately taken into account by the Guidelines, and may therefore be used to support the upward departure. The People further maintain that the Supreme Court's classification of the appellant as a level three sex offender was not based solely upon his familial relationship with the victim, but also upon the egregious and abhorrent nature of the criminal acts he committed, some of which occurred in the presence of his other children.

Analysis

As a preliminary matter, we note that the New York State Sex Offender Registry indicates that the appellant was deported to his native country of Mexico on July 11, 2018, during the pendency of this appeal. We agree with the parties that the appellant's involuntary deportation poses no impediment to our consideration of the present appeal. Indeed, we have previously determined that such deportation neither undermines a SORA defendant's due process right to appeal nor renders that appeal academic, especially given the "practical consequences with respect to SORA registration requirements" that flow from an offender's risk level classification ( People v. Shim, 139 A.D.3d 68, 76, 28 N.Y.S.3d 87 ; see People v. Del Rosario, 36 N.Y.3d 964, 965, 137 N.Y.S.3d 288, 161 N.E.3d 476 ; People v. Alas, 140 A.D.3d 841, 35 N.Y.S.3d 112 ; People v. Azeez, 138 A.D.3d 945, 28 N.Y.S.3d 617 ). Accordingly, we address the merits of the appeal below.

Familial Relationship

In order to achieve the goal of protecting the public from recidivist conduct by sex offenders (see People v. Stevens, 91 N.Y.2d 270, 275, 669 N.Y.S.2d 962, 692 N.E.2d 985 ), the legislature enacted SORA and charged the Board with the task of recommending a risk level classification for each sex offender nearing release from incarceration (see Correction Law § 168–l[6] ). To assist in the classification process, the legislature directed the Board to develop uniform Guidelines (see id. § 168–l[5] ), and the Board further created the RAI as a tool through which to evaluate an offender's risk of reoffending or danger to the community. Employing the Guidelines and the RAI, the Board considers a number of so-called risk factors to which it has assigned point values, and then tallies an overall numerical score for each offender. That score is then used by the Board to place the offender in one of three risk level classifications, which have correspondingly greater registration and notification requirements with which the offender must comply (see Correction Law §§ 168–h, 168–i, 168–j ; People v. Mingo, 12 N.Y.3d 563, 570–571, 883 N.Y.S.2d 154, 910 N.E.2d 983 ; People v. Stevens, 91 N.Y.2d at 275, 669 N.Y.S.2d 962, 692 N.E.2d 985 ).

The resulting classification is not binding on the courts; rather, it is presumptive in nature, with "[t]he expectation [being] that the instrument will result in the proper classification in most cases so that departures will be the exception—not the rule" (Guidelines at 4; see People v. Howard, 27 N.Y.3d 337, 341, 33 N.Y.S.3d 132, 52 N.E.3d 1158 ; People v. Sanchez, 186 A.D.3d 880, 882, 130 N.Y.S.3d 43 ; People v. Sprinkler, 162 A.D.3d 802, 79 N.Y.S.3d 232 ; People v. Curry, 158 A.D.3d 52, 58, 68 N.Y.S.3d 483 ). The SORA court is then obligated to conduct a hearing at which the People must prove the facts supporting the determination they seek by clear and convincing evidence (see Correction Law § 168–n[3] ; People v. Mingo, 12 N.Y.3d at 571, 883...