This is a case for multiple sex crimes which the defendant has inflicted against a two year old child. Before the defendant was released from incarceration, she was evaluated by the Board of Examines or Sex Offenders and was found to be a low-risk level. However, in the case summary prepared by the same board, the defendant was found to be, by various other reasons, a level 3 sex offender or “high risk”.
The recommendations was consented by the defendant and a “risk level assessment” hearing was conducted. The result of the proceeding includes: the court said that it will not deviate from the report given by the Board of Examiners even if the court is endowed with the power to exercise its discretion. The Court said that the departure from the report will be the exception and not the general rule.
According to the court, it is not bound by the numerical score, or the Board’s suggestions, and the judges may depart from those recommendations based on the particular facts as well as the totality of the circumstances laid down before him. The court, may, rely upon may sources to determine the appropriate level to attach to the defendant.
Also, it is clear that the court may base said departure from the aggravating or the mitigating factors not otherwise taken into account by the guidelines. The recommendations made by the Board of Examiners are merely advisory.
In this instant case, the materials used by the board to conclude the numerical assessment of the defendant is the instrument, the board’s summary and the pre-hearing record, the defendant’s PSI (Pre-Sentence Evaluation) and pre-conviction motions and memoranda. There also exists a videotape of the crime itself which caught the defendant in flagrante delicto.
The defendant has garnered a score of 70 in the assessment test. However, according to the Board, the defendant should have been given an additional 20 points under “Risk Factor 1.7” and “relationship with the victim”.
As in this case, relationship with the victim was described as “stranger or established for the purpose of victimizing or professional relationship. Under the Sex Offenders Registration Act – Risk Assessment Guidelines and Commentary, relationship includes those who “exploit a professional relationship to victimize those who repose trust in them”.
In this instant case, it appears undoubtedly that the defendant was fire to tend to the two year old victim. The nanny was left alone, unsupervised, with the infant. As clearly established in this case, the trusted relationship was exploited and abused by the defendant by abusing the infant entrusted with her care.
With the limited instrument and the commentary, it appears, according to the court, that the defendant fits this category.
On the other hand, the defendant attacked the result and the summary as presented by the Board. However, the Board alleged that the findings were founded upon defendant’s long term history of mental health problems which includes depression, suicide attempts and disconfigured mental health treatment.
The Court ruled that the defendant was not a “high risk” sexual offender but merely a “moderate risk” offender. The court ruled that the defendant’s appropriate score is 90 or at least a “level 2” or “moderate risk”; the level also recognized the unique, and strange nuances of the crime as captured by the video, which the instrument obviously failed to record; and the level also has taken into consideration the long mental health history of the defendant.
Thus, the court ruled that a departure is required with all of the factors which has been taken into consideration, specifically that the defendant is a “level 2” or “moderate risk”. This level is necessary because her offense requires atypical vigilance and exceptional treatment. Therefore, premises considered, the defendant was adjudicated to be a Sexually Violent Offender in accordance with Corrections Law Section 168 a (7) (b).
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