People v. Waterbury

216 N.Y.S.3d 781

The PEOPLE of the State of New York, Respondent,

v.Alexander WATERBURY, Appellant.

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

Calendar Date: April 29, 2024

Decided and Entered: August 8, 2024

Law Offices of Michael Pollok, PLLC, Red Hook (Michael S. Pollok of counsel), for appellant.

Emmanuel C. Nneji, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Clark, Lynch and Mackey, JJ.

OPINION AND ORDER

Garry, P.J.

Appeals from two orders of the County Court of Ulster County (Bryan E. Rounds, J.), entered June 2, 2023 and June 15, 2023, which, among other things, classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

Defendant attended college in New Hampshire but left early and did not graduate as a result of grief stemming from the loss of multiple family members. He thereafter remained in New Hampshire and worked as a soccer coach at a local high school. In 2019, defendant cultivated a short-term sexual relationship with a 14- year-old student whom he was coaching; alcohol was involved. He ultimately pleaded guilty in New Hampshire to four counts of felonious sexual assault, and misdemeanor charges related to the provision of alcohol. He was sentenced to concurrent prison terms of 3½ to 7 years on three of the convictions and to a consecutive suspended sentence of 3½ to 7 years on the fourth conviction; that latter sentence was suspended for 15 years subject to defendant’s compliance with various conditions (see NH Rev Stat Ann §§ 632-A:3 [II]; 651:21).

Upon his release from prison in 2022, defendant moved into his parents’ home in Ulster County. Due to his convictions of offenses equivalent to rape in the second degree in this state (see Penal Law § 130.30[1]), he was required to register in New York as a sex offender under the Sex Offender Registration Act (Correction Law art 6-C [hereinafter SORA]) (see Correction Law § 168-a [2][a][i]; [d][i]). The Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI) classifying defendant as a risk level two sex offender with a total score of 85 points, including 25 points for sexual intercourse with the victim (risk factor 2) and 20 points each for the duration of the offense (risk factor 4), the victim’s age (risk factor 5) and defendant’s professional relationship with the victim (risk factor 7); the People adopted that RAI. Defendant did not contest the RAI’s presumptive risk level, but moved for a downward departure. The Board advised, and the People argued, against a downward modification. County Court denied defendant’s request for a downward departure by order entered June 2, 2023 and subsequently issued an order classifying defendant as a risk level two sex offender. Defendant appeals from both orders.

[1–3] In seeking a downward departure, "defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" (People v. Salerno, 224 A.D.3d 1016, 1017, 205 N.Y.S.3d 519 [3d Dept. 2024] [internal quotation marks and citations omitted]; see People v. Anthony, 40 N.Y.3d 976, 978, 196 N.Y.S.3d 699, 219 N.E.3d 339 [2023]; People v. Gilloth, 23 N.Y.3d 841, 864, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]). Where an offender meets this burden of proof, "the court must then weigh the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over assessment of the defendant’s dangerousness and risk of sexual recidivism" (People v. Anthony, 40 N.Y.3d at 978, 196 N.Y.S.3d 699, 219 N.E.3d 339 [internal quotation marks, brackets, ellipsis and citation omitted]). In support of a downward modification, defendant relied upon numerous circumstances that he argued reduced his risk of reoffense and were not adequately considered in the RAI, including the deterrent effect of the suspended sentence, extensive psychometric testing that placed him at low risk of reoffending, his response to sex offender treatment and the fact that the lack of consent underlying his crimes was based solely upon the age of the victim.

At the outset, we give little weight to defendant’s arguments relative to the nature and consequences of the New Hampshire suspended sentence (see NH Rev Stat Ann §§ 632-A:3 [II]; 651:21). Defendant asserts that this sentencing structure was not appropriately addressed in the RAI, as this suspended sentence is distinct from postrelease supervision.¹ This is not compelling, in part because risk factor 14 considers the degree of supervision a sex offender is subject to following his or her release. As defendant was subject to a period of specialized supervision under the terms of the suspended sentence, he was assessed no points under that risk factor. Defendant’s suspended sentence was thus considered by the RAI and is not a mitigating factor (see People v. Masi, 195 A.D.3d 1328, 1329, 149 N.Y.S.3d 377 [3d Dept. 2021]; People v. Valentine, 187 A.D.3d 1681, 1681-1682, 132 N.Y.S.3d 505 [4th Dept. 2020], lv denied 36 N.Y.3d 907, 2021 WL 629331 [2021]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]).

Nevertheless, we find merit in defendant’s argument that the positive results of multiple psychometric testing instruments and accompanying expert opinion are mitigating factors not taken into account by the RAI. The Board’s commentary on its guidelines "recognizes ‘that an objective instrument, no matter how well designed, will not fully capture the nuances of every case’ " (People v. Johnson, 11 N.Y.3d 416, 121, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). In this same vein, we are mindful that the RAI - the risk assessment instrument used by the Board for decades since SORA’s enactment - has been criticized for lack of scientific validation, and it has not been updated despite significant additional scientific research in this field (see e.g. People v. Romulus, 189 A.D.3d 553, 559, 136 N.Y.S.3d 291 [1st Dept. 2020] [Acosta, P.J., dissenting], appeal dismissed 36 N.Y.3d 1082, 142 N.Y.S.3d 880, 166 N.E.3d 1058 [2021], lv denied 37 N.Y.3d 910, 2021 WL 4190158 [2021]; People v. McFarland, 29 Misc.3d 1206[A], 2010 N.Y. Slip Op. 51705[U], *12-20, 2010 WL 3892252 [Sup. Ct., N.Y. County 2010], affd 88 A.D.3d 547, 931 N.Y.S.2d 225 [1st Dept. 2011], lv denied 18 N.Y.3d 860, 938 N.Y.S.2d 868, 962 N.E.2d 293 [2011]; NY City Bar Assn on Crim Cts et al., Report on Updating the Guidelines of the Sex Offender Risk Assessment Instrument [Feb.2022] [initially issued May 2013], available at https://www.nycbar.org/reports/updating-the-guidelines-of-the-sex-offender-risk-assessment-instrument/ [last accessed July 26, 2024]).

[4, 5] We recognize that additional testing "standing alone" does not necessarily establish a mitigating factor (People v. Palomeque, 170 A.D.3d 1055, 1055, 94 N.Y.S.3d 589 [2d Dept. 2019], lv denied 33 N.Y.3d 912, 2019 WL 4200731 [2019]; see People v. Curry, 158 A.D.3d 52, 60, 68 N.Y.S.3d 483 [2d Dept. 2017], lv denied 31 N.Y.3d 905, 2018 WL 2012991 [2018]; see also People v. Rodriguez, 145 A.D.3d 489, 490, 44 N.Y.S.3d 16 [1st Dept. 2016], lv denied 28 N.Y.3d 916, 2017 WL 628943 [2017]). Nor does the testimony of a defendant’s retained expert necessarily lead to a finding of mitigation (see People v. Dorvee, 203 AD.3d 1413, 1415-1416, 163 N.Y.S.3d 705 [3d Dept. 2022]; People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584 [2d Dept. 2012]). Nonetheless, as defendant strongly urged this Court at oral argument, we should consider scientific evidence and the results of properly-validated, and broadly accepted, testing that sheds light upon an offender’s risk of reoffending.

Here, defendant presented a significant body of evidence compiled by two professional evaluators. First, a licensed clinical social worker with the Ulster County Probation Department described in his report the three risk assessment tests that he administered to defendant: the STATIC-99R, STABLE-2007 and ACUTE 2007. The STATIC-99R is widely accepted by the scientific community (see People v. McFarland, 2010 N.Y. Slip Op. 51705[U], *10 ["The most widely used (actuarial risk assessment) in the world is the ‘Static 99’ "]).² As described by the social worker in his report, the STATIC-99R "has moderate accuracy in ranking offenders according to their relative risk for sexual recidivism" (see generally L. Maaike Helmus et al., Static-99R: Strengths, Limitations, Predictive Accuracy Meta-Analysis, and Legal Admissibility Review, 28 Psychology, Public Policy, and Law 307, 326- 327 [2022], available at https://psycnet.apa. org/fulltext/2022-61121-001.pdf [last accessed July 26, 2024]). According to the probation officer, the ACUTE 2007 measures an offender’s hostility, sexual preoccupation, emotional collapse and the collapse of his or her social supports. The social worker concluded that the STABLE-2007 and ACUTE 2007 tests deemed defendant a low risk of reoffending, and the STATIC-99R test deemed him an average risk of reoffending; the combined results of the STABLE-2007 and STATIC-99R testing demonstrated that defendant was a below-average risk of reoffending, with about a 1.6% chance of doing so over a five-year period.

Defendant’s retained psychologist also administered the STATIC-99 and STABLE-2007 instruments to defendant, obtaining results similar to those described by the social worker. The psychologist administered an additional battery of tests designed to reveal various sexual offense, mental health and violence risk factors. The MMPI-3 showed that defendant had "a below-average level of impulsive behavior." The PCL-R indicated that defendant had a below-average exhibition of psychopathic tendencies. A third test, the HCR-20, measuring...