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The PEOPLE of the State of New York, Plaintiff, v. Gilberto SUERO, Defendant.
The main issue before the court is whether or not a certificate of relief from civil disabilities issued by the Parole Board for an unrelated felony conviction prevents a SORA court from assessing points for that felony conviction under Risk Factor 9.
For the reasons stated herein, the court finds that it does not.
After considering the evidence and the arguments of the parties, the defendant is designated a Risk Level 3 with no special designation.
This decision contains the court's findings of fact and conclusions of law.
The Board of Examiners and the People submitted recommendations as to their respective positions with regard to the defendant's special designation and presumptive risk level. The defendant submitted a recommendation in response.
On March 20, 2018, the court held a Risk Level Assessment Hearing. Each side submitted evidence and made oral arguments.
In 1991, the defendant, under the name Jose Santo, was convicted of the class “AII” felony of Criminal Possession of a Controlled Substance in the Second Degree, in New York County. On July 19, 1991, he received a sentence of 3 years to life. The Department of Parole issued a certificate of relief from civil disabilities (hereafter “certificate of relief”) in November, 1993.
In 2016, the defendant, under his present name, was employed as a social worker/therapist for the New York City Board of Education. Among other things, the defendant treated children with psychological and behavioral problems. Between November 1, 2016 and May 31, 2017, the defendant treated the four victims in the case.
Between December 21, 2016, and April 24, 2107, the defendant touched the breasts and buttocks of an 8 year old girl under her clothing. He also kissed her on the cheek. While she was sitting on his lap he tickled her and tried to pull her shirt up. He touched her bare stomach and tried to move his hand up further to touch her breasts, but the girl took his hand off her torso and pulled her shirt down after he had touched a part of her breast. He tickled her under her shirt.
Between December 21, 2016 and April 24, 2017, the defendant placed a ten year old girl on his lap and touched her breasts and buttocks under her clothing.
On April 6, 2017, the defendant caressed the face of a twelve year old girl while telling her that she was beautiful. He rubbed her inner thighs over her clothing, but near her vagina, with his hand. On April 20, 2017, the defendant grabbed the girl on her hips near her buttocks. The defendant tried to kiss her on the lips, but she moved, and because of that he ended up kissing her on her nose. The defendant asked her for her phone number so that he could text her something. Throughout the session he continued to tell the victim that she was a very beautiful girl.
Between November 1, 2016 and May 31, 2017, the defendant touched the buttocks of a thirteen year old girl over her clothing and was able to slip part of his hand down her pants onto her buttocks before she pushed his hand away. He also touched her chest, legs and torso. He kissed her on her head and forced her to kiss him on his cheek.
Some of these victims were foster children. All of the abuses happened in the defendant's office, where the victims had come to receive therapy.
On April 23, 2017, the defendant pled guilty to Sexual Abuse in the Second Degree [PL § 130.60 (2) ], a class “A” misdemeanor. The defendant affirmed that his attorney had told him about the effect of registering as a Sex Offender. The defendant declined the opportunity to be interviewed by the Department of Probation so that a Probation Report could be prepared, and agreed to be sentenced immediately. The defendant was sentenced to a definite sentence of four months of incarceration. Final Orders of Protection were issued for three victims.
The People and Board contend that the defendant should not receive a Special Designation. The defendant agrees.
At the outset, it should be noted that the defendant's contention, in sum and substance, that it is not fair for the court to determine the “course of the restrictions of defendant's life without any input from the defendant” because there are no pre-sentence or probation reports, is without merit. The defendant pled guilty and declined an opportunity to be interviewed by the Department of Probation and to have the Department issue a pre-sentence report. At the Risk Level Assessment hearing the defendant was advised directly of his rights to testify and to present additional evidence. The defendant declined to testify or to present any additional evidence after consulting with his attorney. Thus, the defendant declined an opportunity to rectify any lost opportunity he may have missed, by waiving a probation report, to provide “input” about his life by testifying. Since he declined both a probation report and the opportunity to present live testimony, he cannot now complain of a deficiency which he himself created, and which he himself, and only he, could have rectified.
PRESUMPTIVE RISK LEVEL
The Board and the People agree that the defendant is a presumptive Risk Level 3.
The Board and the People each assess the defendant with 120 points, as follows:
Risk Factor 2 (Sexual Contact with victim) - 10 points;
Risk Factor 3 (Number of victims) - 30 points;
Risk Factor 5 (Age of victim) - 30 points;
Risk Factor 7 (Relationship with the victim) - 20 points;
Risk Factor 9 (Prior Crimes) - 15 points; and
Risk Factor 14 (Release without supervision) - 15 points.
The defendant contests the assessments under Risk Factors 2, 3, 5, 9, and 14, contending that no points should be assessed in any of the categories.
The defendant contends that he should be assessed as a Presumptive Risk Level 2.
The defendant is assessed with 120 points, and is therefore a Presumptive Risk Level 3.
RISK FACTOR 2
The People have shown by clear and convincing evidence that the defendant had sexual contact under the clothing of a victim, and he is therefore assessed 10 points.
The defendant's contention that the risk factor is “overstated” because the evidence provided is insufficient to meet the “clear and convincing” standard is not persuasive. The defendant acknowledges that the evidence presented “may be the basis for the court to determine a risk factor.” The evidence submitted, consisting of reports, was sufficient to prove, by clear and convincing evidence, that the defendant had touched at least one child under her clothing. Nevertheless, the court, at the defendant's request, reviewed the grand jury testimony. It is clear from the testimony that the charges alleged in the indictment were supported by sufficient evidence, and that the People have met their burden for the assessment of points in this category, in that the testimony proves that the defendant subjected at least one victim to sexual contact under her clothing. Therefore, the defendant will be assessed 10 points.
RISK FACTOR 3
The People have shown by clear and convincing evidence that there were at least three victims, so the defendant will be assessed 30 points.
RISK FACTOR 5
The People have shown by clear and convincing evidence that at least one of the defendant's victims was 10 or less. The defendant will be assessed 30 points.
RISK FACTOR 7
The People have shown by clear and convincing evidence that the defendant had a professional relationship with at least three of his victims. The defendant will be assessed 20 points.
RISK FACTOR 9
The People have shown by clear and convincing evidence that the defendant was previously convicted of a felony. The defendant's argument that a SORA court cannot assess points in this category because SORA is a civil proceeding and the defendant was issued a certificate of relief preventing penalties in a civil proceeding, is flawed, and contrary to established precedent.
Corrections Law 701(1) provides “A certificate of relief from disabilities may be granted as provided in this article to relieve an eligible offender of any forfeiture or disability, or to remove any bar to his employment, automatically imposed by law by reason of his conviction of the crime or of the offense specified therein. Such certificate may be limited to one or more enumerated forfeitures, disabilities or bars, or may relieve the eligible offender of all forfeitures, disabilities and bars. Provided, however, that no such certificate shall apply, or be construed so as to apply, to the right of such person to retain or to be eligible for public office.”
Since the imposition of points under the SORA laws on the RAI is not a forfeiture or disability, and does not involve employment, the certificate of relief, on its face, does not bar the imposition of points. The conviction is still dealt with as a conviction, since, the “granting of a certificate of relief from disabilities in no way eradicates or expunges the underlying conviction” (Able Cycle Engines, Inc. v. Allstate Co., 84 AD2d 140 [2d Dept 1981] [internal citations and quotation marks excluded], appeal denied 57 NY2d 607 ).
A certificate of relief from civil disabilities does not remove all penalties which may be imposed on a defendant after it is issued.
A certificate of relief issued for a felony does not bar the use of that felony as a predicate felony for enhanced sentencing purposes. The defendant's contention that this is proper under the sentencing provisions, because the second felony determination is made pursuant to a statute, but the SORA determination is not, belies the status of the risk assessment instrument. The imposition of points for the various categories on the risk assessment instrument are created and regulated by a statute [Corr Law 168-l(5) ], and the court is required to make a determination pursuant to a statute by applying the guidelines [Corr Law 168-n (2) ].
Additionally, a certificate of relief does not prevent a conviction from “serving as a factual basis for misconduct and termination of employment” (Calloway v. Glass, 203 AD2d 800 [3d Dept 1994]), does not prevent the automatic termination of unemployment benefits (In re Claim of Brugeman, 101 Ad2d 973 [3d Dept 1984], appeal denied 63 NY2d 608 ; In re Claim of Belmar, 122 AD2d 478 [3d Dept 1986], appeal dismissed 69 NY2d 707 ), does not relieve “an individual from disclosing a prior conviction” nor preclude the Federal Unemployment Insurance Appeal Board from using the prior conviction for purposes of denying benefits (In re Claim of Ghorab, 219 AD2d 793 [3d Dept 1995]), does not “prevent an administrative body from relying on a conviction ․ as the basis for the exercise of discretionary power to revoke or issue a license” (Springer v. Whalen, 68 AD2d 1011 [3d Dept 1979] [internal quotation marks omitted], lv to appeal denied 47 NY2d 710 ), and does not prevent “a city agency from relying on the conviction as a basis of its discretionary power to terminate employment (Correction Law 701  )” (Barretto v. Gunn, 134 AD2d 495 [2d Dept 1987]; Zazycki v. Albany, 94 AD2d 925 [3d Dept 1983], appeal denied 60 NY2d 558 ).
With regard to SORA, the Second Department, citing Able, has held that “there is no merit to the defendant's contention that, because he had obtained a certificate of relief from civil disabilities in connection with his conviction of a prior misdemeanor sex crime, he was improperly assessed points for that conviction under risk factor 9” (People v. Cox, 103 AD3d 866 [2d Dept 2013] [internal citations omitted], lv denied 21 NY3d 855 ). The rationale of assessing points under risk factor 9 for a prior misdemeanor conviction applies equally to assessing points under risk factor 9 for a prior felony conviction.
This application of points on the risk assessment instrument is also consistent with the statute under which the defendant received the certificate of relief. Correction Law 701(3) states that a certificate “shall not, however, in any way prevent any judicial, administrative, licensing, or other body, board or authority, from relying upon the conviction specified therein as the basis for the exercise of its discretionary power” (Pisano v. McKenna, 120 Misc 2d 536 [Sup Ct Oneida County 1983]; Correction Law 701(3) ). In this light, preventing a SORA court from assessing points on the risk assessment instrument for a previous conviction for which a certificate of release was issued would invariably “frustrate and override” Megahan's Law, an effect not intended by the Legislature (see Nass v. Warehouse Production, etc, 503 F Supp 217 [ED NY 1980]).
Therefore, the defendant will be assessed 15 points under this risk factor.
RISK FACTOR 14
The People have shown by clear and convincing evidence that the defendant has been released without supervision.
In arguing that the defendant should not be assessed points in this category, the defendant's legal conclusion that since the People consented to a sentence without probation or post release supervision, the defendant should not be assessed points for not having supervision is flawed. At the outset, it should be noted that the SORA court is not bound by agreements made between the prosecution and the defendant at the time of sentencing since “[a] SORA risk assessment hearing is not considered part of a criminal action, as the criminal action terminates upon the imposition of sentence (see CPL 1.20 ; People v. Stevens, 91 NY2d 270 276-277, 669 N.Y.S.2d 962, 692 N.E.2d 985)” (People v. Brooks, 308 AD2d 99 [2d Dept 2003], lv denied 1 NY3d 502 ).
The reason why the defendant has no supervision is of no import for SORA purposes, since supervision is an objective consideration (see, People v. Oliver, 137 AD3d 1236 [2d Dept 2016], lv denied 27 NY3d 909 ; People v. Callendar, 127 AD3d 1153 [2d Dept 2015] lv denied 25 NY3d 913 ; People v. Lewis, 37 AD3d 689 [2d Dept 2007] appeal denied 8 NY3d 814 ; People v. English, 60 AD3d 923 [2d Dept 2009]; People v. Leeks, 43 AD3d 1251[3d Dept 2007]; People v. Miller, 77 AD3d 1386 [4th Dept 2010] lv denied 16 NY3d 701 ).
The SORA Guidelines make it clear that supervision of sex offenders is an important element in preventing them from re-offending. “Strict supervision is essential when a sex offender is released into the community ․ An offender who is released without ․supervision is assessed points in this category” (SORA Commentary at (B)(14) ).
The lack of supervision has been proven by clear and convincing evidence and conceded by the defendant. Therefore, the defendant will be assessed with 15 points.
The defendant requests a downward departure to Risk Level 2.
A defendant seeking a downward departure from the presumptive risk level under the Sex Offender Registration Act (SORA) Guidelines has the initial burden of (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of re-offense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence (McKinney's Correction Law § 168 et seq.; see, People v. Gillotti, 23 NY3d 841; People v. Torres, 124 AD3d 744 [2d Dept 2015], lv denied 25 NY3d 906 ).
“Under the Sex Offender Registration Act (hereinafter SORA), a court must follow three analytical steps to determine whether to downwardly depart from the presumptive risk level. First, the court must decide whether the mitigating circumstances alleged by the defendant are, as a matter of law, of a kind or to a degree not adequately taken into account by the SORA guidelines ․Second, the court must decide whether the defendant has adduced sufficient evidence to meet his or her burden of proof in establishing that the alleged mitigating circumstances actually exist ․The defendant must prove the facts supporting a downward departure by a preponderance of the evidence ․ And third, if the defendant ‘surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure” (People v. Houston, 122 AD3d 915 [2d Dept 2014], lv denied 24 NY3d 917 ; [internal citations omitted] ).
The defendant's request for a downward departure, based largely on the assessment of points previously mentioned, is denied. The defendant has failed to prove, by a preponderance of the evidence, that the factors he relies on are, in fact, mitigating circumstances not taken into account by the risk assessment instrument.
“[U]tilization of the risk assessment instrument will generally result in the proper classification in most cases, so that the departure will be the exception, not the rule” (People v. Colavito, 73 AD3d 1004 [2d Dept 2010], lv denied 15 NY3d 705  [internal citations omitted] ).
The defendant was in a position of trust with several young children. He took advantage of this position, and the fact that the children would be seeing him in a private setting, without regard to their future welfare, something that he, as a social worker/therapist was acutely aware of. The harm to these children will undoubtedly take years to overcome, it they are able to recover at all. At a minimum, the defendant's actions delve into their ability to trust adults, service providers, and private settings. This is an important consideration under the SORA Guidelines. “It is important to note that the risk level seeks to capture not only an offender's risk of reoffense but also the harm posed by a particular offender should he reoffend” (SORA, A. General Principles, § 1).
Even if the factors elicited by the defendant constituted mitigating circumstances, the court, in the exercise of its discretion, would not grant a downward departure from Level 3 to Level 2, as this would under assess not only the defendant's likelihood of reoffense but also the harm he would cause if he did reoffend.
The defendant's remaining contentions have been considered, and the defendant has failed to prove that they are mitigating factors and the factors and/or are without merit.
The defendant is properly assessed with 120 points and a downward departure is not appropriate; accordingly, it is
ORDERED, that the defendant is designated and Risk Level 3, with no Special Designation.
This opinion constitutes the decision and order of the court.
Mario F. Mattei, J.
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Docket No: 155/2017
Decided: April 15, 2018
Court: Supreme Court, Richmond County, New York.
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