New York Supreme Court Reduces Sex Offender Level for Defendant

In a sex crime hearing in the Supreme Court, Kings County on August 3, 1998, the defendant’s sex offender level was lowered after the Court carefully considered all of the facts in the case. The defendant was convicted of one count of Attempted Rape in the First Degree, and a lesser crime of Count I of the indictment charging Rape in the First Degree, also known as statutory rape. Other charges in the indictment were based on the age of the victim. There were no allegations of forcible compulsion per se. The sex crime offender proposed that his moderate risk level should be reduced to a low risk level, and that the higher level was not consistent with facts that were part of his case and his due process rights.

In this sex crime, the defendant was arrested on March 5, 1993 and charged with Rape in the First Degree, Sex Abuse in the First Degree, and Endangering the Welfare of a Child. This resulted from the complaint of 10 year-old Jamila who stated that the defendant had removed her clothes, spread her legs, and placed his penis inside her vagina. Later that day, he gave her five dollars to not tell anyone what happened. The sex abuse charge was dismissed upon a technical error by the Grand Jury.

At the same time, the defendant was also charged with endangering the welfare of a child, Gladys, age 15 who he photographed in her underwear. This was done secretly and with her consent after she refused his requests for sexual contact. On April 6, 1994, the defendant pled guilty to the allegations of Attempted Rape in the First Degree with Jamila. The defendant lived with the girl’s grandmother. He was released from prison in 1996. In 1997, he requested a hearing in response to his assessment of being a Level 2 sex crime offender.

This hearing took place on December 17, 1997. The offender had been assigned a total of 85 points, making him a Level 2. These pointes include 10 points for use of forcible compulsion; 25 points for sexual intercourse, deviate intercourse, or aggravated sexual abuse; 20 points for two victims and 30 points for a victim less than 10 years of age. The defendant had no criminal history other than these incidents. At his release from prison, he was to be supervised by an officer who specialized in supervising sex crime offenders. Fifteen additional points may be added when an offender is released without this supervision.

Since the sex crime offender is no longer supervised, the District Attorney wanted to have 15 points added to his risk factor of 85, making him a Level 2 offender. The defendant took issue with the 10 points given to him for forcible compulsion since the charges were on the age of the victim and there were no allegations of force. He also wanted the 20 points removed for the sex crimes against two victims because the Endangering the Welfare of a Minor related to a separate victim, and there was no conviction on this charge. In addition, the defendant says that this crime is not listed as a sex crime offence and should not be considered when computing his level score.

After considering all factors in the case, the Court found that because there was no evidence of threats or violence of any kind in the incident with Jamila, 10 points should not have been added to the sex crime offender’s score for forcible compulsion when there were no allegations of this. It was also determined that 30 points assigned for the age of the victim being age 10 or less covered the circumstance of the sex crime. It was also found that the Board had the wrong information when they believed that forcible compulsion had been involved in this case when it had not. The Court ruled that the 10 points for this charge should be dropped since it did not apply to the offender’s case.

The Court also determined that 20 points that were added for sex crimes against two victims should not be dropped based on the fact that only one rape conviction existed. The defense claimed that photographing the 15 year-old Gladys was a conviction for Endangering the Welfare of a Child and did not require registration as a sex crime offender. However, the Court determined that after the 15 year-old refused to have sexual contact with the offender, he then continued his plan with her younger sister. According to the law, sex crime offenses that involve two or more victims indicate compulsive behavior and is a factor in assessing the offender’s risk of committing the same crime again.

The Court further found that there should not be 15 points added to the defendant’s score for not being supervised by a parole officer who is an expert in sex crime offenders. The defendant served his time in prison and that it had been two and one-half years since he had been released from prison. The Court’s adjustments of the level score brought it down to 75 points, and the highest score for a Level 1 is 70.

At the time of this hearing, the defendant was 62 years of age and had been employed for over 30 years as a jewelry polisher. He had no prior criminal history and completed a six-week sex crime offender program. He also had physical problems of poor eyesight and a heart condition. With all factors considered, the Court ruled that the defendant was not a great risk to society and should be deemed a Level 1.