People v. Howard, 65.
| Decision Date | 03 May 2016 |
| Docket Number | No. 65.,65. |
| Citation | 27 N.Y.3d 337,52 N.E.3d 1158,33 N.Y.S.3d 132,2016 N.Y. Slip Op. 03415 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Quanaparker HOWARD, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Kathryn Friedman, Buffalo, for appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido and Donna A. Milling of counsel), for respondent.
DiFIORE
, Chief Judge.
In People v. Knox, 12 N.Y.3d 60, 69, 875 N.Y.S.2d 828, 903 N.E.2d 1149 (2009)
, cert. denied 558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 (2009), we held that “the Legislature c[an] constitutionally provide that all those convicted of kidnapping or unlawfully imprisoning children not their own, or of attempting to commit those crimes, be conclusively deemed sex offenders”—subject to the Sex Offender Registration Act (SORA)—even where there “was neither a sexual assault nor any discernible risk of one” associated with the SORA-qualifying offense.
Defendant does not dispute that he is a “sex offender” as defined by SORA. Rather, he protests his adjudication as a risk level three sex offender by the SORA hearing court following convictions for the assault and the unlawful imprisonment of his then-girlfriend's eight-year-old son during which he caused serious physical injury to the child with a dangerous instrument. Specifically, the issue on appeal is whether the SORA hearing court abused its discretion in adjudicating defendant a risk level three where the unlawful imprisonment conviction, the qualifying crime for SORA, did not involve a sexual component. We find no abuse of discretion on this record.
By all accounts, the facts are egregious. Defendant, along with his codefendant, tied codefendant's eight-year-old son up, naked, in a standing position and repeatedly beat him with dangerous instruments for a period of approximately five days. The child, bruised and battered, was discovered by police in an “upper bedroom naked with his arms tied to the closet and bed post, a sock stuck into his mouth, a pillowcase tied over his head, [and] socks tied on his wrists and his feet with electrical cord.” As a result of this ordeal, the child suffered a collapsed lung, bruised intestines, a lacerated liver
and pooled blood in the abdomen. Defendant was convicted of first-degree unlawful imprisonment (Penal Law § 135.10 ), two counts of first-degree assault (id. § 120.10[1], [3] ), and one count each of second degree assault (id. § 120.05[8] ) and endangering the welfare of a child (id. § 260.10[1] ).
As a nonparent convicted of unlawful imprisonment of a victim less than 17 years of age, defendant was required to register as a sex offender pursuant to SORA (Correction Law § 168 et seq.
). In preparation for defendant's release, the Board of Examiners of Sex Offenders (the Board) prepared a risk assessment instrument (RAI) that assessed defendant a risk factor score of 55 points, warranting a level one classification.1 The Board had assessed zero points for risk factor 2, “sexual contact with Victim.” The Board noted, however, that under the Guidelines, an override to level three was applicable because defendant inflicted serious physical injury to his victim. The Board further noted that no departure from that presumptive risk level was warranted.
At defendant's SORA hearing—at which defendant waived his right to appear—defense counsel argued that a level one classification was appropriate, stating that
The People, on reviewing the RAI, requested that for risk factor 1, “Use of Violence” in the current offense, the court assess defendant 30 points, as opposed to the 15 points assessed for “[i]nflicted physical injury,” because defendant was “armed with a dangerous instrument.” This additional 15 points brought the total risk factor score to 70 points, still a presumptive risk level one. The People also agreed with the Board's application of the presumptive override to risk level three on the basis that the offender inflicted serious physical injury.
Defense counsel responded, arguing that
County Court adjudicated defendant a level three sex offender, finding defendant's total risk factor score was 70—constituting a risk level one—but employing the override to a presumptive risk level three for infliction of serious physical injury. The court “agree[d] with the Board's recommendation and the People's on the [p]resumptive [l]evel [three].” The court declined to depart from that presumptive level, highlighting “the extensive serious injury inflicted upon the victim” which included “torture inflicted” and finding that defendant “pose[d] a serious risk to public safety that [wa]s not captured by the scoring instrument.”
The Appellate Division unanimously affirmed for the reasons stated by County Court (125 A.D.3d 1331, 999 N.Y.S.2d 783 [4th Dept.2015]
). This Court granted leave to appeal (25 N.Y.3d 906, 2015 WL 3620522 [2015] ), and we now affirm.
At a SORA hearing, the People must prove the facts to support a SORA risk-level classification by clear and convincing evidence (Correction Law § 168–n [3
] ). Here, defendant ultimately scored a total of 70 points on the RAI, warranting classification as a level one sex offender, and that score is not at issue in this appeal. However, the RAI also provides for four automatic overrides, the application of which will result in a presumptive risk assessment of level three (see Guidelines at 3–4). Relevant to this appeal, one of these overrides is for the “infliction of serious physical injury or the causing of death” (id. at 3). There is no dispute that defendant was convicted of the crime of first-degree assault, wherein he caused serious physical injury to the victim by the use of a dangerous instrument (see Penal Law § 120.10[1]
), and, therefore, the override was properly applied.
Nevertheless, the hearing court has the discretion to depart from a presumptive level (see Knox, 12 N.Y.3d at 70, 875 N.Y.S.2d 828, 903 N.E.2d 1149
). We have held that such departures are “the exception, not the rule” (People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ). In determining whether to depart from a presumptive risk level, the hearing court weighs the aggravating or mitigating factors alleged by the departure-requesting party to assess whether, under the totality of the circumstances, a departure is warranted (People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).2
In People v. Cintron, decided in tandem with Knox, we addressed the question of whether “the courts below abused their discretion in not departing from the guideline level [three], since the crimes that gave rise to the adjudication did not involve sex” (12 N.Y.3d at 70, 875 N.Y.S.2d 828, 903 N.E.2d 1149
). We answered that question in the negative, citing defendant Cintron's “long record of violent conduct, including sexual violence” (id. ).
In the present appeal, defendant's argument that the SORA court erred in adjudicating him a level three sex offender is essentially twofold. Defendant argues (1) that SORA is unconstitutional as applied to him and (2) that the SORA court abused its discretion in “engaging in an upward departure” from a risk level one to three because defendant's crime did not involve a sexual component.
Defendant's constitutional argument is unpreserved for this Court's review (see People v. Windham, 10 N.Y.3d 801, 802, 856 N.Y.S.2d 557, 886 N.E.2d 179 [2008]
).
As to defendant's remaining argument, defendant characterizes his level three adjudication as an “upward departure” from the presumptive risk level one warranted by the 70 points he was assessed. However, the application of the override for “infliction of serious physical injury,” “automatically result[s] in a presumptive risk assessment of level [three]” (Guidelines at 3). Therefore, properly framed, defendant's argument is that the SORA court abused its discretion in declining to engage in a downward departure from the presumptive risk level three. We disagree.
Defendant's sole argument to the SORA court was that the absence of a sexual component to his crime, in and of itself, warranted a level one adjudication. That factor, the existence of which was not in dispute, was considered in defendant's RAI wherein the Board assessed him zero points for risk factor 2—“Sexual Contact with Victim.” Defendant made no other argument of a mitigating factor to the SORA court in support of a downward departure. In the exercise of its discretion, the SORA court declined to depart from the presumptive risk level three.
At the SORA hearing, defendant was represented by counsel and afforded an opportunity to present any other mitigating factors. There is nothing in the record to suggest that the hearing court felt it did not possess the discretion to depart from the presumptive level three, nor to suggest that the hearing court did not exercise that discretion (cf. People v. Reynolds, 68 A.D.3d 955, 955–956, 891 N.Y.S.2d 451 [2d Dept. 2009]
). In fact, the court found that such a downward departure was not “ warranted by the evidence,” making the finding that based on “the torture inflicted” defendant “poses a serious risk to public safety that is not captured by the scoring instrument.”
On appeal, defendant attempts to distinguish his case from that of People v. Cintron because he has no past criminal history of sexual offenses. However, absence of past sexual offenses alone does not compel a conclusion that the hearing court abused its discretion. Defendant was assessed no points for criminal history...
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