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County Court, Madison County.

The PEOPLE of the State of New York, Plaintiff, v. Walter D. FRISBEE, Defendant.

Decided: March 12, 2004

Donald F. Cerio, Jr., Esq., District Attorney, for the People. Todd D. Dexter, Esq., for the defendant.

The defendant was convicted, based on his plea of guilty, to one count of Rape, 2nd degree (Penal Law § 130.30), a Class D felony, and sentenced on September 5, 2002, to an indeterminate period of incarceration of one to three years.   He is now scheduled to be released on parole on April 25, 2004.   The Court is called upon to assess the risk of this defendant reoffending under Correction Law Art. 6-C (commonly known as the “Sex Offender Registration Act” or New York's version of “Megan's Law”).

The defendant has an extensive criminal history going back to 1989, including a 1993 conviction for sexual misconduct (at which time he was 20 years old), and convictions for criminal contempt in 1993 and 2000 and criminal trespass in 2000.   In his most recent criminal case, the defendant had engaged in a sexual relationship with the 13-year old daughter of his former girlfriend.   Although it was alleged that the defendant had engaged in sexual intercourse with the child on multiple occasions between August and December of 2000, he admitted to but a single instance of sexual intercourse with her.   Prior to sentencing, he described his relationship with his victim as being more of a “father-daughter relationship”.   Significantly, in February, 2003, the defendant received a serious disciplinary report when he was observed in his cell, masturbating in front of a nurse.

The Board of Examiners of Sex Offenders (hereinafter, “the Board”) has provided the Court with a Case Summary and its recommendation that the defendant be adjudicated to be a “Level 3” risk of reoffense based upon a risk factor score of 145 points.   The District Attorney is in agreement with the Board's findings and recommendation.

The defendant argues that the Board improperly scored a total of forty (40) points in the Risk Assessment Instrument.   Specifically, he avers that it was improper to assess twenty points in Factor No. 4 because he admitted only a single instance of sexual intercourse with the victim.   Additionally, he objects to the assessment of twenty points in Factor No. 6 on the ground that he was not aware that his victim suffered from some mental incapacity or disability.

The Guidelines promulgated by the Board state that Factor No. 4 “is designed to reflect the fact that some offenders, particularly those who prey on young children, manifest their compulsive behavior by engaging in a continuing course of sexual contact with the same victim.   The offender who sexually abuses his girlfriend's young daughter over a period of several weeks falls into this 20-point category.”

 In the Case Summary provided by the Board, it is stated that “Between August, 2000, and December, 2000, (the defendant) perpetrated a continuous course of sexual misconduct with the victim by engaging her in acts of sexual intercourse.   The victim stated that on ‘five or more instances' she would wake up to find (the defendant) on top of her, subjecting her to sexual intercourse ․”.   By contrast, when the defendant entered his plea of guilty to Rape 2nd degree, he admitted only a single instance of misconduct.   For that reason, he argues, it would be unwarranted to find that there had been a continuous course of misconduct on his part, thereby adding twenty points to his score.

 In assessing a sex offender's risk of reoffense, the Court is not limited to the defendant's admissions.  People v. Marinconz, 178 Misc.2d 30, 679 N.Y.S.2d 244 (Sup. Ct., Bronx County 1998).   Instead, the Court may credit the prior statements of his victim as well as any other relevant materials and evidence properly submitted.   See, Correction Law § 168-n (3).   This is all the more so where, as here, the defendant does not offer to give testimony on his behalf at the risk assessment hearing to support his contention.   Hence, the Board properly found that a continuous course of misconduct was a factor, and the twenty points attributable thereto were properly added to the defendant's score.  People v. Madlin, 302 A.D.2d 751, 755 N.Y.S.2d 121 (3d Dept. 2003);  People v. Wiggins, 1 Misc.3d 913, 2004 WL 300074 (Sup. Ct., Bronx County 2004).

 Turning to the defendant's second argument, the Board included twenty points in his score under Factor No. 5 owing to the tender age of the victim and added twenty more points under Factor No. 6. The defendant claims he did not realize that the victim was mentally incapacitated or disabled, so it was improper assess points to his score in this category.

The Guidelines addressing Factor No. 6 state:

․ Offenders who prey upon such victims (the mentally incapacitated or physically helpless) consciously choose people who cannot protect themselves or effectively report their abuse.   Such offenders pose a greater risk to public safety since their crimes are more difficult to detect and prosecute.   Absent extraordinary circumstances, an offender who has been assessed points for the age of his victim should not be assessed points in this category to avoid double-counting.

Had the assessment of points in this category been attributable to the victim's mental incapacity, the defendant's argument might have had merit.   The Case Summary indicates that the defendant is “a dull-normal individual who ․ chooses victims as limited intellectually as he is.”  However, nothing in the defendant's presentence investigation report dated August 21, 2002 or any of the other materials under consideration even suggests that this victim was mentally retarded, developmentally disabled or otherwise mentally incapacitated or impaired.   It may be that the Board deemed this otherwise normal 13-year old to be on the same intellectual plane as a “dull-normal” adult.   In any event, the points in this category are fairly assessed because the defendant chose to repeatedly victimize the child while she was sleeping and, thus, physically helpless.  People v. Thiessen, 158 A.D.2d 737, 550 N.Y.S.2d 944 (3d Dept. 1990);  People v. Irving, 151 A.D.2d 605, 542 N.Y.S.2d 693 (2d Dept. 1989);  People v. Copp, 169 Misc.2d 757, 648 N.Y.S.2d 492 (Rochester City Ct. 1996).

Unlike mental incapacity which is permanent in nature, physical helplessness due to natural sleep is momentary so that upon awakening, the victim would not be under the same impediment in reporting the offense as she would be if she were mentally incapacitated.   The concern expressed in the Guidelines is the difficulty in detecting and prosecuting the crime because of the condition of the victim.   This would certainly apply where the victim suffers some significant mental impairment, but the incapacity from this type of physical helplessness disappears as soon as the victim awakens and regains consciousness.   For this reason, the “double-counting” concern is not applicable where the victim was physically helpless due to natural sleep as opposed to mentally incapacitated.   Thus, the Board properly assessed twenty points to the defendant's score due to the victim's age and an additional twenty points due to the fact that the victim was asleep and therefore physically helpless.

The Court's review of the Board's Risk Assessment Instrument shows that the other various risk factors applicable to the defendant have been correctly identified and scored.   The defendant's total risk factor score is 145 points.   Accordingly, the defendant is determined to be a Level 3 (“high” risk) sex offender.