Opinion
1031 KA 17–01202
10-05-2018
The PEOPLE of the State of New York, Respondent, v. Ernesto PEREZ, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by determining that defendant is a level one risk pursuant to the Sex Offender Registration Act and as modified the order is affirmed without costs.
Memorandum: Defendant appeals from an order classifying him as a level two sex offender pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). We agree with defendant that Supreme Court erred in assessing him 20 points under risk factor 7, which applies when, insofar as relevant here, the offender's conduct " ‘was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization’ " ( People v. Cook , 29 N.Y.3d 121, 125, 53 N.Y.S.3d 238, 75 N.E.3d 655 [2017], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006] ). The 24–year–old defendant and the 16–year–old victim met while working at a local Red Cross; the two exchanged contact information and, months later, communicated through social media and by telephone before any sexual contact occurred. Under these circumstances, the People failed to establish by clear and convincing evidence that defendant and the victim were strangers at the time of the crime (see People v. Birch , 114 A.D.3d 1117, 1118, 981 N.Y.S.2d 189 [3d Dept. 2014] ; People v. Johnson , 93 A.D.3d 1323, 1324, 940 N.Y.S.2d 758 [4th Dept. 2012] ; cf. People v. Mabee , 69 A.D.3d 820, 820, 893 N.Y.S.2d 585 [2d Dept. 2010], lv denied 15 N.Y.3d 703, 2010 WL 2572036 [2010] ; People v. Serrano , 61 A.D.3d 946, 947, 877 N.Y.S.2d 472 [2d Dept. 2009], lv denied 13 N.Y.3d 704, 2009 WL 2779385 [2009] ;see also People v. Graves , 162 A.D.3d 1659, 1660–1661, 79 N.Y.S.3d 798 [4th Dept. 2018] ; see generally People v. Helmer , 65 A.D.3d 68, 70, 880 N.Y.S.2d 598 [4th Dept. 2009] ). Moreover, the People "presented no evidence that defendant ... targeted the victim for the primary purpose of victimizing her" ( People v. Johnson , 104 A.D.3d 1321, 1321–1322, 961 N.Y.S.2d 713 [4th Dept. 2013] ; see People v. Green , 112 A.D.3d 801, 802, 977 N.Y.S.2d 77 [2d Dept. 2013] ).
Without the 20 points assessed under risk factor 7, defendant is a presumptive level one sex offender (see Helmer , 65 A.D.3d at 69, 880 N.Y.S.2d 598 ). We therefore modify the order accordingly. Defendant's request for a downward departure is academic in light of our determination.