In 1985, a man was convicted of one count of first degree rape, one count of second degree rape, four counts of first degree sodomy and four counts of second degree sodomy. The charges stemmed from claims brought by his two stepdaughters, who claimed that he forcibly raped and sodomized them on multiple occasions. Following his conviction, he was sentenced to a combined term of 25 to 50 years.
His criminal defense attorney filed a motion to set aside the verdict and this request was granted in 1991. The New York County Supreme Court was unable to determine why the conviction was overturned but the prosecutor in the case claimed they had arranged a plea agreement in which he would plead guilty to one count of first degree rape. In exchange, he received a sentence of 5 to 15 years.
In September 2008, the court received a letter from the New York Board of Examiners of Sex Offenders concerning defendant’s risk level. The person who drafted the letter, Board Examiner Floyd Epps, stated that he had raped, sodomized, sexually abused and threatened the two victims over a period of several years. The letter also indicated that he claimed the charges were false and that his wife had encouraged the two girls to make up the story because she was angry that he was having an affair. In addition, Mr. Santos has denied committed the sex crimes he was charged with.
According to the letter, defendant was released on parole in May 1994 and in January 1997, returned to prison because of a violation. He was released again in April 1997 and incarcerated again in 2003 because of another violation. In 2004, he was released again and his supervision period ended. At the time of his initial parole, he was classified as a Level Three sex offender. Following his last release from prison, he earned both a bachelors and master’s degree and refrained from engaging in criminal activities. Based on these facts, he filed a motion to have his sex offender status downgraded to a level two classification.
The court ordered the prosecution to prepare a new risk assessment evaluation to determine defendant’s threat level. This document assigns a specific number of points to certain factors which when combined, provide a score which is used to assess the potential for future reoffense. After completing the new assessment, his score was determined to be 115, which was five points over the minimum score required for a Level Three classification. Based on this result, he then filed a motion to have his risk level downgraded to Level Two, citing the positive changes in his lifestyle following his release from prison. Both the prosecutor and the Board of Examiners opposed this motion.
The New York County Supreme Court was charged with determining whether to grant Mr. Santos’ request. Specifically, the court looked at the guidelines created by the Sex Offender Registration Act and the factors incorporated as part of the risk assessment document. Individuals with a score of 0 to 70 are classified as Level One offenders; a score of 75 to 105 points leads to a Level Two classification; and Level 3 offenders have a score of 110 to 300 points. The higher the score, the greater the perceived risk that a sex offender will commit subsequent sex crimes. Mr. Santos’ criminal defense attorney did not challenge the validity of the risk assessment toll but merely questioned whether the scoring system had certain limitations that should be considered in determining whether to upgrade or downgrade an offender.
The court acknowledged that the score was based on both objective and subjective determinations, rather than a psychiatric evaluation. The court also noted that the points designated for each factor, including the use of violence, the age of the victim and the type of contact involved, did not appear to have any actuarial basis. Furthermore, the court found that the factors used to calculate risk level were seemingly arbitrary in some circumstances and that the timing of an offense could cause the score to increase dramatically. Finally, the court held that the risk assessment tool was outdated and failed to account for new scientific research findings regarding sex offender recidivism rates and risk factors. However, the court is generally not allowed to depart from the findings of the risk assessment tool unless certain aggravating or mitigating circumstances are present.
In this case, the court held that downgrading his classification to a Level Two offender was justified based on his actions after his final stay in prison in 2004. The court argued that there was clear and convincing evidence of his reduced threat level which support the change in status, despite the score determined by the risk assessment tool. The court did agree that Mr. Santos’ failure to acknowledge guilt for his crimes should be counted against him in calculating his risk score but that that fact alone did not support the Level Three classification. The court also acknowledged that he had not been a model citizen after his 1994 release and that the fact that there was no evidence of unlawful sexual contact with a minor did not mean that these types of offenses had not occurred during that period. However, based on the perceived recidivism risk, the court supported his status being downgraded to Level Two.
Being labeled a sex offender can have serious and long-lasting repercussions and make it difficult to become a productive member of society. Fortunately, the subject was able to move in a more positive direction after his release from prison, which merited the change in his sex offender status.
If you or a loved one is battling sex offense charges, you need the aid of an experienced New York criminal defense attorney to protect your rights. The law office Stephen Bilkis and Associates is available to assist criminal defendants in the New York area who are charged with rape, sodomy, sexual abuse and other types of unlawful sexual contact. Call 1-800-NY-NY-LAW today to get the legal help you need. You can also discuss your case in person by visiting one of the firm’s New York are offices. Don’t hesitate to contact Stephen Bilkis and Associates today to get the help you need to fight a sex crime charge.