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Board noted that the defendant admitted his guilt

A Bronx Criminal Lawyer said that, on August 15, 1998, the defendant was released from state prison after serving a three year sentence following his conviction on October 25, 1995 to sexual abuse in the first degree. The defendant, who was a Cadet Leader of an eight year old boy, pled guilty to fondling the boy’s penis while staying overnight at the boy’s home. The court must now make a risk assessment determination pursuant to the Sex Offender Registration Act (SORA).

A Bronx Sex Crimes Lawyer said that, the Board of Examiners of Sex Offenders has recommended to the court that the defendant be assessed a risk level two. This recommendation was based on the Board’s use of its objective risk assessment instrument which assigns a numerical value to the existence of certain risk factors and totals the numerical points to arrive at the offender’s presumptive risk level. The Board found that the defendant’s total risk factor score was 100 points. This score, being more than 70 points but less than 110 points, falls within the numerical parameters set forth for a presumptive risk level two category. A level two designation indicates that the risk of repeat offense is moderate.

A Bronx Criminal Lawyer said that, the defendant seeks a downward departure from the presumptive risk level two to a risk level one. The defendant and defense counsel appeared for a hearing on August 19, 1998. The Bronx District Attorney’s Office declined to appear indicating that it routinely takes no position with regard to sex offender classifications. The State Attorney General’s Office was notified, but did not appear. No one has moved on behalf of the State for an upward departure from the level two recommendation of the Board.

A Bronx Sex Crime Lawyer said that, the defendant pled guilty before this court sitting as an acting Supreme Court Justice in Bronx County. This sex crime offender’s risk assessment hearing was assigned to the judge who currently sits in Bronx County, Part C. I asked that I be designated by the Deputy Chief Administrative Judge to sit in Bronx County Part C for purposes of these SORA proceedings. This court is acutely familiar with this case. The numerous correspondence and motions by this internet sex crime offender during his incarceration have also afforded this court additional insight into the defendant, and an opportunity to monitor his period of institutional confinement.

The issue in this case is whether the Board of Examiners of Sex Offenders recommendation that the defendant be assessed a risk level two is proper.

After receiving a risk assessment recommendation from the Board, the sentencing court must make a final judicial determination with respect to the level of notification. The phrase “sentencing court” is not defined within the Act. Other States have held that the phrase “sentencing court” refers to the forum that had jurisdiction over the case, as opposed to the specific judge. Although this State has not set forth a definition in statute or case law for the phrase “sentencing court,” it has been held that a judge is not “the court” as a “court” is defined as an organized body with defined powers, meeting at certain times and places for the hearing and decisions of causes and other matters brought before it.

A sex crime offender need not be classified by the particular judge who sentenced that sex offender. However, the judge who personally presided over a sex offense case and sentenced the sex offender is usually in the best position to evaluate the potential danger posed by the defendant, and accordingly determine what is the proper level of notification that they owe to the public. This thirty-seven year old sex offender is a psychiatrically diagnosed and self-described pedophile. In 1995, recognizing the serious threat the defendant posed, this court ultimately rejected the original plea agreement negotiated between the prosecution and the defendant which sought a sentence of probation, coupled with the imposition of certain conditions. This court sentenced the defendant to an indeterminate state prison sentence of one to three years.

Due process mandates that the State must bear the burden of proof to support its proposed risk level assessment by clear and convincing evidence. However, even where departure from the calculated presumptive risk level is not requested, it is still appropriate for the court to independently consider whether a departure from the recommendation is warranted. The board serves only in an advisory capacity similar to the role served by a probation department in submitting a sentencing recommendation. The court is not bound by the recommendation of the board and, in the exercise of its discretion, may depart from the recommendation and determine the sex crime offender’s risk level based upon the facts and circumstances that appear in the record.

Similarly, the court need not accept at face value the allocation of risk factor points by the Board, even where there has been no challenge. The court may still wish to scrutinize the underlying circumstances that the Board relied upon in assessing risk. This is especially true when the information in the record before the court appears to be more extensive than that relied upon by the Board. In assessing risk, the Board or the court may rely upon the case file, the sex offender’s admissions, the victim’s statements, the evaluative reports of the supervising probation officer, parole officer, or corrections counselor, or any other reliable source. After considering the Board’s recommendation, any victim’s statement, any statement or materials submitted by the sex crimes offender, and reliable information in the case file, the sentencing court bears the ultimate responsibility to determine whether the Board’s presumptive risk level recommendation appropriately reflects the risk posed to the public, or whether departure from that recommendation is warranted.

The Board also did not assess any points against the defendant for his non-acceptance of responsibility. A guilty plea may provide some evidence of a defendant’s acceptance of responsibility. However, it does not, by itself, constitute a sincere acknowledgment of personal culpability. For example, an offender who pleads guilty but tells his presentence investigator that he did so only to escape a state prison sentence has not accepted responsibility.

In this case, the Board noted that the defendant admitted his guilt. He stated he fondled the victim for pleasure, but at times indicated that he remembers nothing about the instant offense or his criminal history as a result of a severe beating he received in retaliation for his crime. At the time of sentence in 1995, defendant’s psychiatrist noted that, “although the defendant does not remember any pedophilic acts on his part, he personally accepts responsibility for his actions and says that if he was accused of these actions that he did them.” A second examining psychiatrist noted that the defendant stated he “rubbed this little boy’s penis.” But later, when confronted with both his admission of guilt to the Probation Department and his claims of lack of memory, he stated, “that is my thing touching boys (genital area) so I must have done it.” An individual cannot accept responsibility for committing a crime while at the same time denying memory of his criminal conduct.

The Guidelines themselves stress that both the Board and the court should examine the offender’s most recent credible statements and should seek evidence of genuine acceptance of responsibility. Here, there is no such genuine acceptance of responsibility. Quite notably the defendant’s letters are after he completed the prison’s mandatory sexual treatment program. While neither admitting nor denying his latest offense, he nonetheless expressed his willingness to continue participating in the sex offender treatment program saying “better safe than sorry” and “just in case.”

An acknowledgment of responsibility is critical to the treatment of sex crime offenders as an offender’s ability to identify and modify the thoughts and behavior that are proximal to his sexual misconduct is often a prerequisite to stopping the misconduct. Therefore, this sex offender’s denial of responsibility is evidence that he has not benefitted from the program and evidence that his deviant sexual conduct remains unaffected, and thus undeterred. As the Guidelines point out, an offender who does not accept responsibility for his conduct is a poor prospect for rehabilitation.

This court further finds that, although the defendant received the maximum amount of points with respect to the number and nature of his prior crimes, the objective risk assessment instrument itself cannot adequately take into consideration this pedophile’s criminal history. Prior to his latest offense, the defendant was arrested, in 1987, for criminal impersonation of a police officer and endangering the welfare of a child. The defendant approached two boys, identified himself as a police officer and displayed a badge. A police officer, who observed the defendant’s actions, intervened believing that the defendant was attempting to seduce or solicit the boys. The defendant pled guilty and received three years’ probation. In 1985, the defendant was also arrested for criminal impersonation and criminal trespass. In that case, the defendant dressed up in a Fire Marshall’s uniform and went into two public elementary schools posing as a Fire Marshall. He was sentenced to 60 days in jail.

As early as 1984 at the age of 23, the defendant was also arrested for criminal impersonation of a police officer and criminal possession of a weapon with intent to use. He pled guilty to disorderly conduct in satisfaction of all the charges and received a sentence of a fifty dollar fine or 10 days in jail. According to the defendant, he developed an interest in younger boys, ages 8 to 10, when he was approximately 16 or 17 years old.

This sex offender has repeatedly attempted to foster relationships with children for the purpose of seduction. He has a pattern of impersonating police officers and firefighters for the purpose of gaining access to children. Children are taught from an early age to trust these public servants and to seek their assistance when in need of aid. The defendant’s brazen conduct not only demonstrates the defendant’s cunningness to lure young, naive boys into perilous situations, but it also demonstrates that his paramount objective is to prey on the young. Those who frequently victimize children develop complicated techniques for obtaining access to children. Offenders who target young children as their victims are more likely to re-offend. The fact that his criminal impersonations were discovered prior to any completed sexual acts, does not affect the significance of the history of the defendant’s criminal behavior. An offender who intended to engage in sexual activity with his victim but is prevented from doing so by some factor other than his own change of mind, such as police intervention, still poses a serious threat to the community.

A mere mechanical application of the guidelines is not the appropriate manner in which to classify this offender. As risk assessment determinations become routine, the sentencing court must continue to fully exercise its independent judgment to ensure an accurate final judicial determination given the importance of the individual and public interests involved in designating an appropriate risk level. Here, there is clear and convincing evidence of the existence of aggravating factors of a kind, or to a degree, not otherwise taken into consideration by the Guidelines. In spite of the lower recommendation by the Board, and even in the absence of a request for an upward departure, this court finds that special circumstances warrant an upward departure from the presumptive risk level two to a level three. The court finds, pursuant to the Sex Offender Registration Act, that the risk of repeat offense is high and that there exists a threat to the public safety.

Accordingly, the defendant is deemed a sexually violent predator and a risk level three designation is hereby assigned to this sex offender.

If you are being charged of a sex crime, seek the assistance of a Bronx Sex Crime Attorney and/or Bronx Criminal Attorney at Stephen Bilkis and Associates.

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