This matter is before the court for a judicial determination of defendant’s duration of registration and level of notification pursuant to the Sex Offender Registration Act (SORA), based upon defendant’s conviction of one count of promoting prostitution in the second degree.
A New York Sex crimes attorney said that the court received a risk assessment recommendation from the Board of Examiners of Sex Offenders pursuant to Correction Law § 168-l (6), recommending that defendant be designated a Level 2 sex offender. Prior to the hearing, the court received no notice from the People that they would seek at the hearing “a determination that differs from the recommendation [of the] board.”
In July 2002, following a jury trial before this court, defendant was convicted of promoting prostitution in the second and third degrees, endangering the welfare of a child, and criminal solicitation in the fourth degree, in connection with defendant’s effort, at the direction of her pimp, to promote the prostitution of a 13-year-old girl.2 At the time of the offense conduct, defendant was 22 years old. Thereafter, defendant was sentenced as a first felony offender to concurrent indeterminate prison terms of 2 to 6 years and 1 to 3 years for promoting prostitution in the second and third degrees, respectively, and concurrent one-year jail sentences on the two misdemeanor counts of conviction. The court has been advised by the Board that defendant is presently eligible to be released from incarceration.
The court has considered the position and arguments of defense counsel and the People at the hearing, as well as defendant’s statement, along with the documents in making its level of notification and duration of registration determinations.
Although the Board recommended that no points be assessed for the use of violence under risk factor one on the risk assessment instrument, the People maintain that defendant should be assessed 10 points for the use of forcible compulsion during the commission of the instant offenses. Defendant opposes the assessment of 10 points for this risk factor.
This provision serves to provide the offender with a meaningful opportunity to be heard. In order to avoid the resulting denial of due process to the offender in the absence of compliance with this notice requirement, the People’s failure to serve a timely statutory notice of the determinations they seek has been held to constitute a waiver of their right to advance them at the hearing.
Here, the People failed to give any statutory notice prior to the hearing that they intended to argue for a risk assessment determination which differed from the Board’s recommendation.4 Indeed, the absence of any advance notice here, much less the 10 days’ notice statutorily required, deprived defendant of the opportunity for a meaningful response. In addition, there was no evidence at the hearing that defendant knowingly and intelligently waived her right to receive such notice. Accordingly, the People have waived their right to be heard regarding defendant’s risk assessment.
The Guidelines use terms that are defined in the Penal Law to avoid ambiguity. Forcible compulsion, as defined in Penal Law § 130.00 (8), means: “to compel by either (a) the use of physical force; or (b) a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.”
When interpreting this provision, the Guidelines rely upon a holding of the Court of Appeals and observe that:
“`[T]he point . . . is not what the defendants would have done, but rather what the victim observing their conduct, feared they . . . might do if she did not comply with their demands.’. Discrepancies in age, size, or strength are relevant factors in determining whether there was such compulsion. The victim’s age, by itself, however, is not a sufficient basis for a finding of forcible compulsion.”
Here, the People contend that defendant used forcible compulsion against the victim when she warned her that force would be used against her if she did not obey her and their pimp. The People also argue that defendant helped instill fear in the victim when their pimp slapped the victim for not following instructions. The People further maintain that defendant intimidated the victim when she had the victim watch her and their pimp drag another prostitute into a house.
The People have not established by clear and convincing evidence that defendant used physical force against the victim or engaged in conduct which placed the victim in fear of immediate death or physical injury to herself or in fear that she would immediately be kidnapped. Although defendant may have employed a certain level of psychological coercion against the victim, such coercion was not accompanied by the victim’s fear of “immediate” harm contemplated by the statute.
Accordingly, the Court were to rule on the merits on the People’s requested assessment as to the use of violence risk factor, it found there to be insufficient evidence to conclude that defendant acted with forcible compulsion justifying the assessment of 10 points for risk factor one, the use of violence against the victim.
The Board recommended the assessment of 25 points for defendant’s sexual contact with the victim, risk factor two. The People adopt the Board’s recommendation and contend that defendant shared the intent of the victim’s customers and her pimp to have sexual contact with her. Defendant opposes this assessment, arguing that defendant had no sexual contact with the victim and that there is insufficient evidence to establish that she shared the intent to do so with any individual who did have sexual contact with the victim.
The relevant sexual contact with the victim required by risk factor two is sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual abuse. The evidence at trial, however, established that defendant had no sexual contact of any sort with the victim. Accordingly, defendant may be assessed points for this risk factor only if, upon the application of “traditional principles of accessorial liability”, she is criminally liable for these crimes which were committed by others.
The traditional view of accomplice credibility under the Penal Law states: “When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, [s]he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.” The question, then, is whether defendant is criminally liable for the conduct of the victim’s customers and her pimp, who committed the requisite sexual contact with the victim.
In this case, as demonstrated by her conviction for promoting prostitution, defendant acted with the requisite intent to promote the victim into prostitution through various means, including bringing the victim to her customers, instructing the victim to provide certain sexual services for the appropriate fee, bringing the victim to be photographed for advertising purposes, and decorating a room with Barbie dolls in which the victim could service her customers. There is, however, no evidence that defendant assisted the customers in obtaining the services of the victim or shared their intent when they committed the sexual activity necessary to support the assessment of 25 points for risk factor two.7 In addition, there is no evidence that defendant shared her pimp’s intent when he engaged in sexual intercourse with the victim. Assault was not one of the charges.
Accordingly, the Court found that there is insufficient evidence to establish that defendant was an accomplice to the victim’s customers or her pimp and their commission of the sexual activity with the victim. Risk factor two is therefore assessed zero points.
The Board recommends the assessment of 20 points for a continuing course of sexual misconduct with the victim, risk factor four. The People adopt this recommendation. Defendant opposes the assessment, arguing that there is insufficient evidence to establish that defendant engaged in any sexual misconduct with the victim.
The Guidelines define a continuing course of sexual misconduct as “either (i) two or more acts of sexual contact, at least one of which is an act of sexual intercourse, , or aggravated sexual abuse, which acts are separated in time by at least 24 hours, or (ii) three or more acts of sexual contact over a period of at least two weeks.” As defendant engaged in no sexual contact with the victim, and, as discussed above, there is insufficient evidence to establish that defendant was an accomplice to the victim’s customers in their commission of the requisite sexual misconduct, the Court found there is insufficient evidence to conclude that defendant engaged in a continuing course of sexual misconduct as defined by the Guidelines.
Accordingly, risk factor four is assessed zero points.
Although defendant has not been previously convicted of a felony, her criminal record contains eight prostitution-related misdemeanor convictions. Accordingly, the Court agrees with the Board’s recommendation to impose five points to risk factor nine, as defendant has a prior criminal record, but no convictions for felonies or sex crimes as defined by the statute. Risk factor nine, therefore, is assessed five points.
The Board recommends no overrides or departures from the presumptive risk level it recommends for defendant, Level 2. In contrast, the People initially sought an upward departure from the Board’s recommendation of Level 2 to Level 3 based upon their contention that defendant has expressed no remorse for her crimes, but they later withdrew the application after conceding that defendant has shown remorse. Defendant contends that a downward departure is warranted from Level 2 as recommended by the Board to Level 1, contending that Level 2 overstates the danger defendant poses to the community.
A court may upwardly or downwardly depart from an offender’s presumptive risk level if it finds that, on the record before it, there exists an aggravating or mitigating factor of a kind or to a degree not otherwise adequately taken into account by the Guidelines. More specifically, if an offender is an accessory to sexual contact with a victim and is assessed points on this basis, a court “may choose to depart from the risk level so calculated if it determines that this point score results in an over-assessment of the offender’s risk to public safety.” Accordingly, even if this court were to agree with the recommendation of the Board and the People that defendant be denominated a Level 2 sex offender based, in part, on accessorial sexual contact with the victim, the court would nevertheless consider whether or not such an assessment overstates defendant’s risk to public safety.
Defendant has also sincerely expressed her remorse for her crimes, especially as to the victim’s age, both to the Board and to this court. Her correspondence to the court expresses a deep desire to leave the effective slavery which consumed her as a prostitute. Although defendant’s crimes are very serious and cannot be excused, the court is mindful that defendant’s only lifestyle since she was 18 years old has been as a prostitute. The court is convinced that defendant will make every effort to insure that she does not return to her former life of prostitution.
In sum, this court believes that if ever there was a case for a downward departure, this case is it. The court is most favorably impressed with defendant’s accomplishments. She has made the most valuable use of her time while incarcerated and has much to show for it. The court finds sufficient evidence in the record to conclude that defendant has no interest in returning to a life of prostitution, and that it is unlikely that she will repeat the kind of offense for which she was convicted.
Accordingly, even if the court were to agree with the Board’s recommendation that defendant should be categorized as a Level 2 sex offender, there exist on this record mitigating factors of a kind and to a degree which have not otherwise been adequately taken into account by the Guidelines. Moreover, there is sufficient evidence establishing that a Level 2 denomination overstates defendant’s risk to public safety. This court would, therefore, grant defendant’s application for a downward departure to Level 1.
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