PEOPLE v. RIOS (2008)

Appeal by the defendant from an order of the Supreme Court, Kings County (McKay, J.), dated July 2, 2007, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant was convicted, after a jury trial, of rape in the first degree (three counts) and sodomy in the first degree (six counts).   The complaining witnesses were the four-year-old and seven-year-old daughters of his paramour.   The hearing court, following a hearing, granted an upward departure and designated the defendant a level three sex offender pursuant to Correction Law article 6-C.

The defendant is deaf and mute.   He is illiterate, has minimal language skills, and speaks by signing words.   The defendant contends that he could not communicate with the sign language interpreter and as a result he was denied the effective assistance of counsel and the right to be present at the hearing.

 The determination as to whether an interpreter is necessary “lies within the sound discretion of the trial court, which is in the best position to make the fact-intensive inquiries necessary to determine whether there exists a language barrier such that the failure to appoint an interpreter will deprive the defendant of his or her constitutional rights” (People v. Warcha 17 A.D.3d 491, 493, 792 N.Y.S.2d 627).   Here, the court, in accordance with Judiciary Law § 390, appointed a sign interpreter.   A review of the transcript of the hearing does not support the defendant's contention that he could not communicate with the interpreter.   There was only one instance during the hearing where the interpreter and the defendant advised the court that they had difficulty in communication.   The interpreter advised the court that the defendant was not using American Sign Language but rather that he signed broken-up words.   However, neither the interpreter nor the defendant advised that they could not communicate.   The defendant's counsel stated at the hearing that she used the interpreter to speak with the defendant prior to the hearing, and she did not indicate that she could not communicate with the defendant.   The defendant provided his counsel with information that counsel was able to use to successfully argue against the assessment of points in two categories.   Accordingly, the record does not support the defendant's contention that he could not communicate with the interpreter or that he was denied the right to be present or the effective assistance of counsel (see People v. Perez, 198 A.D.2d 446, 447, 604 N.Y.S.2d 152;  People v. Reyes, 158 A.D.2d 626, 551 N.Y.S.2d 596).

 A court, in the exercise of discretion, may depart from the presumptive risk level assessment upon a finding, supported by clear and convincing evidence, that there are aggravating or mitigating factors of a kind or degree which were not considered by the guidelines (see People v. Inghilleri, 21 A.D.3d 404, 405, 799 N.Y.S.2d 793).   Here, the court, based on the evidence before it at the hearing, including the risk assessment case summary describing the defendant's crimes, appropriately found that the guidelines did not consider multiple sexual assaults, in less than 24 hours, on both a four-year-old girl and a seven-year-old girl.   The hearing court properly considered the severity of the attacks on these children and found them to be brutal and egregious such that they warranted an upward departure (see People v. Miller, 48 A.D.3d 774, 775, 854 N.Y.S.2d 138).   The finding was supported by clear and convincing evidence (see People v. Hampton, 300 A.D.2d 641, 751 N.Y.S.2d 428).

Accordingly, the court providently exercised its discretion in designating the defendant a level three sex offender (see People v. Miller, 48 A.D.3d 774, 775, 854 N.Y.S.2d 138).