People of State v. Bowles

• Decision Date: 01 November 2011
• Citation: 2011 N.Y. Slip Op. 07826,932 N.Y.S.2d 112,89 A.D.3d 171
• Parties: PEOPLE of State of New York, respondent,v.Ronald BOWLES, appellant.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 171

932 N.Y.S.2d 112

2011 N.Y. Slip Op. 07826

PEOPLE of State of New York, respondent,

v.Ronald BOWLES, appellant.

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

Nov. 1, 2011.

Lynn W.L. Fahey, New York, N.Y. (Erin R. Collins of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Gamaliel Marrero on the brief), for respondent.DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SANDRA L. SGROI, JJ.LEVENTHAL, J.

On this appeal, the defendant, Ronald Bowles, who, after a hearing, was designated a level two sex offender pursuant to Correction Law article 6–C, contends, inter alia, that he did not receive the effective assistance of counsel. We find, among other things, that while the defendant has a right to the effective assistance of counsel, that right was not violated.

The defendant was convicted, upon his plea of guilty, of unlawful imprisonment in the second degree ( see Penal Law § 135.05), a class A misdemeanor. The underlying acts involved the sexual assault and rape of a 14–year–old female student in a high school stairwell by two codefendants of the defendant while the defendant acted as a lookout. During a portion of the incident, the defendant held the victim by her waist so that one of the codefendants could remove her pants. In 2001, the defendant was sentenced to 10 days in jail, with three years postrelease supervision.

Thereafter, the Supreme Court conducted a risk level assessment hearing pursuant to the Sex Offender Registration Act (Correction Law article 6–C; hereinafter SORA). The Risk Assessment Instrument (hereinafter RAI) assessed 95 points against the defendant, enough for a level two adjudication, including 25 points for sexual contact with the victim.

The SORA Hearing

The People and defense counsel appeared before the Supreme Court for the SORA hearing on November 13, 2008. The defendant was notified, but did not appear. The Supreme Court received the RAI into evidence. The prosecutor noted that there was an error in the RAI inasmuch as the defendant was assessed 20 points under risk factor 8 (criminal history), but the defendant should have been assessed only 10 points under that category. The People recommended that the Supreme Court find that the defendant was a level two sex offender based upon the 95 points scored in the RAI. Defense counsel argued that the defendant should not have been assessed 25 points under risk factor 2 (sexual contact with the victim/sexual intercourse) because the defendant “did not have sexual intercourse with the victim.” Over defense counsel's objection, the Supreme Court designated the defendant a level two sex offender.

The Order Appealed From

In an order dated November 13, 2008, the Supreme Court designated the defendant a level two sex offender. The defendant appeals, arguing that, since he did not play a central role in the sexual aspect of the assault, the application of accessorial liability principles to assess him 25 points for sexual contact with the victim/sexual intercourse resulted in an inaccurate assessment. He argues that the RAI was based largely upon the actions of his codefendants. The defendant further asserts that he was entitled to a downward departure from the presumptive risk level and that he should have been adjudicated a level one sex offender. The defendant acknowledges that this contention was unpreserved for appellate review, but asks the Court to reach the issue in the exercise of our interest of justice jurisdiction. In the alternative, the defendant argues that he did not receive the effective assistance of counsel because his attorney did not request a downward departure.

In response, the People argue that the defendant was properly adjudicated a level two offender based upon his total risk assessment score of 95 points, which was supported by clear and convincing evidence. The People further argue that the defendant's contention that he was entitled to a downward departure to level one is unpreserved for appellate review and, in any event, without merit and, therefore, defense counsel's failure to request a downward departure did not constitute ineffective assistance of counsel.

Initially, while the Supreme Court failed to set forth findings of fact and conclusions of law after the hearing, as mandated by Correction Law § 168–n(3) ( see People v. Leopold, 13 N.Y.3d 923, 895 N.Y.S.2d 302, 922 N.E.2d 890), remittal is not required since the record in this case is sufficient for this Court to make its own findings of fact and conclusions of law ( see People v. Vega, 79 A.D.3d 718, 719, 911 N.Y.S.2d 917).

The defendant asserts that he should not have received 25 points under risk factor 2 (sexual contact with victim/sexual intercourse) because he did not actually have sex with the victim. The hearing court properly rejected this contention since the SORA Guidelines state that:

“The guidelines assume that the Board or a court will generally apply traditional principles of accessorial liability in calculating an offender's presumptive risk level ( see Penal Law § 20). That means that if an offender held the victim down while his co-defendant had sexual intercourse with her, the offender should receive 25 points in the category for sexual contact with the victim. The Board or court, however, may choose to depart from the risk level so calculated if it determines that this point score results in an over-assessment of the offender's risk to public safety”

(Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 7 [2006 ed.] ). Although the defendant did not actually have sex with the victim and was not convicted of a crime in which sex with the victim is an element, evidence in the record testimony supports the Supreme Court's determination that the defendant was properly assessed 25 points under risk factor 2. This is because the defendant held the victim's waist during the encounter so that her pants could be removed and because the defendant acted as a lookout. Under the circumstances, since he was acting as a lookout, it can be inferred that the defendant was aware that his codefendant was sexually assaulting and raping the victim. It was then properly determined that he acted in concert with the codefendants. Further, as to the remaining points assessed against the defendant, “[t]he risk level suggested by the RAI ... is merely presumptive, and the assigning of a risk level is within the sound discretion of the SORA court” ( People v. Pettigrew, 14 N.Y.3d 406, 409, 901 N.Y.S.2d 569, 927 N.E.2d 1053; see Correction Law § 168–n[3] ). We find, based upon the victim's sworn testimony ( see People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983) and the risk assessment instrument, that the Supreme Court properly assessed the defendant a total of 95 points and designated him a level two sex offender.

The defendant further argues that he is entitled to a downward departure from presumptive risk level two to risk level one and, in the alternative, that he was deprived of the effective assistance of counsel because his attorney at the hearing did not request a departure. Before addressing the merits of these arguments, we must first determine whether a defendant in a SORA proceeding has a right to the effective assistance of counsel.

The Sixth Amendment to the United States Constitution grants an indigent defendant the right to state-appointed counsel in a criminal case ( see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799). In New York, the right is recognized constitutionally ( see N.Y. Const., art. I, § 6) and by statute ( see CPL 170.10, 180.10, 210. 15). The right to counsel clause in the New York Constitution “is more restrictive than that guaranteed by the Sixth Amendment to the United States Constitution” ( People v. Bing, 76 N.Y.2d 331, 338, 559 N.Y.S.2d 474, 558 N.E.2d 1011). “Nevertheless, by resting the right upon this State's constitutional provisions guaranteeing the privilege against self-incrimination, the right to assistance of counsel and due process of law we have provided protection to accuseds far more expansive than the Federal counterpart” ( id. at 338–339, 559 N.Y.S.2d 474, 558 N.E.2d 1011; see People v. Adams, 53 N.Y.2d 241, 250, 440 N.Y.S.2d 902, 423 N.E.2d 379 [“the State Constitution affords additional protections above the bare minimum mandated by Federal law”] ).

We note that in several decisions of this Court, we have directly addressed the merits of the defendant's claim that he or she was deprived of the effective assistance of counsel in a SORA proceeding ( see People v. Reitano, 68 A.D.3d 954, 889 N.Y.S.2d 857; People v. Kinlock, 66 A.D.3d 980, 981, 888 N.Y.S.2d 119; People v. Sceravino, 57 A.D.3d 503, 867 N.Y.S.2d 696; People v. Rios, 57 A.D.3d 501, 868 N.Y.S.2d 295; People v. Austin, 54 A.D.3d 916, 917, 863 N.Y.S.2d 613; People v. Pipkin, 35 A.D.3d 693, 824 N.Y.S.2d 914; People v. Cummings, 19 A.D.3d 571, 796 N.Y.S.2d 547; People v. Masters, 19 A.D.3d 387, 388, 796 N.Y.S.2d 133; People v. Valentine, 15 A.D.3d 463, 789 N.Y.S.2d 430). These decisions have addressed such claims on the merits without determining that such a right exists.

The First Department has taken a slightly different approach. For example, the First Department, in addressing a defendant's claim that he was deprived of the effective assistance of counsel in a SORA proceeding, stated:

“To the extent that the record permits review, we find that defendant received effective assistance of counsel at the SORA hearing notwithstanding counsel's failure to litigate any aspect of the adjudication. Although a sex offender adjudication is not part of a criminal action, for present purposes we assume, without deciding, that the state and federal standards for effective assistance at a criminal trial would apply ”

( People v. Reid, 59 A.D.3d 158,...