People v. Mitch, 2003 NY Slip Op 51513(U) (NY 12/19/2003), HGI 03-501.
| Decision Date | 19 December 2003 |
| Docket Number | HGI 03-501. |
| Citation | 2003 NY Slip Op 51513(U) |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. ROBERT L. MITCH, Offender. |
| Court | New York Court of Appeals Court of Appeals |
Hon. Susan H. Lindenmuth, Yates County District Attorney, Counsel for the People.
Carl J. Schwartz, Jr., Esq., P.C., (Alan P. Reed, Esq. of Counsel), Counsel for the Offender.
W. PATRICK FALVEY, J.
The offender plead guilty in the State of Florida on September 14, 1995 to the second degree felony of Lewd Assault [Florida Statute §800.04(1)]. The Court, on the same day, withheld adjudication of guilt and sentence and placed the offender on probation with special conditions for a period of three years. However, the Court gave the offender permission to apply for early termination after two years if all conditions were current/complete and there were no violations.
The Florida conviction was a result of the offender, while in his thirties, subjecting his stepdaughter (DOB: March 24, 1982) between the months of January and April of 1995 to a pattern of sexual misconduct (fondling) beginning when the child was eleven or twelve and ending at age of thirteen.
The special conditions required the offender to successfully complete and follow the recommendations of alcohol treatment; psychological/sexual evaluations; no contact with the victim and only supervised contact with his other child and no contact with any female minor child without an adult over twenty-one years of age supervising and who was aware of the charge and offender's probation status.
Subsequently, the offender's probation was terminated early by the Florida Court on January 23, 1998. The Court's termination order noted that it had reviewed the letter and opinion of Mental Health Services, recommending early termination of probation in that offender had complied with his alcohol treatment, addressed his depression, was forthright regarding his sexual misbehavior and accepted full responsibility and placement in the "FDLE sex offender registry".
At the time of his plea the offender was required to register under Florida's Sexual Offenders Laws F.S.A. §§ 775.21(6); 943.0435.
The offender now lives in New York State and the New York State Board of Examiners of Sex Offenders ("Board") argue that due to the offender's Florida guilty plea and the fact he was required to register as a sex offender in Florida he must also register in New York under its Sexual Offenders Registration Act (SORA). see Corrections Law ("CL") §168-k(1).
The Board also assigns a total risk factor of " (High) due to the offender's two other reported contacts of a sexual nature.
A hearing was held on November 6, 2003, to determine, pursuant to CL §168-k, the duration of registration, level of notification [CL §168-l(6)] and whether or not the offender should be designated either as a sexually violent offender, predicate sex offender or sexual predator [CL §168-a(7)]. The Court notes that the Board found that the offender did not require any such designation.
The District Attorney is not seeking a determination different from the recommendation of the Board. Therefore, the People are not required to send the offender notice required under CL §168-k(2).
The offender opposes the Board's determination on two grounds. First, registration is not required in New York as he was not a convicted sex offender as required under CL §§168-a and 168-k, because at the time of his plea in Florida the Court withheld an adjudication of guilt and sentence and instead placed him on probation which was terminated early due to successful completion of the special conditions. Offender asserts that CL §168-a(1) defines a sexual offender as an individual "convicted" of a specified offense but a conviction set aside pursuant to law is not considered a conviction for the purposes of the SORA. Offender concludes that the withholding of an adjudication of guilt and sentence in Florida is tantamount to the setting aside of a conviction in New York which does not require registration.
A conviction in Florida for the purposes of registration means a determination of guilt which is the result of ... the entry of a plea of guilty ... , regardless of whether adjudication is withheld. F.S.A. §§775.21(2)(c); 943.0435(1)(b). And in New York a conviction is defined, among other things, as the entry of a plea of guilty. CPL §1.20(13).
Clearly, the offender's Florida Conviction is the type of offense requiring registration under CL §§168-a(2)(b) and 168-k(1).
Specifically, the offender pled guilty to fondling the breasts of a female under the age of fourteen over a period of two to three years. That conduct is similar to the New York Crimes of Forcible Touching (PL §130.52) and Sexual Abuse in the Third Degree (PL §130.55).
In addition, since the offender was required, at the time of conviction, to register in Florida for a felony conviction he would be required to register in New York. CL §§168-k(1) and 168-a (3)(b).
It is also of no consequence that Florida's sexual offender law has recently been determined to be unconstitutional. Espindola. State, 855 So.2d 1281 (October 22, 2003). This does not negate the fact that the offender pleaded guilty to a crime in Florida which qualifies as a sex offense in New York. CL §168-a(2)(b).
The offender's second ground for opposition is that the Board/People have failed to show, by "clear and convincing evidence", that a departure from a Level "1" to Level "3" is warranted.
The Board, appearing by the district attorney, bears the burden of proving the facts supporting the determination by clear and convincing evidence. CL §168-k(2).
Here, the presumptive risk level is "1" resulting from a risk level score of "65" points. However, the Court may depart from it if special circumstances warrant. But, there may not be a departure from the presumptive risk level unless the Court concludes there exists an aggravating or mitigating factor of a kind or to a degree not otherwise adequately taken into account by the guidelines.
In so doing, the Court must look not only at the conviction but must make an over-all assessment including review of the entire case file to determine what has occurred, the...
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