Opinion
Case No. SMZ-70035-22/-001
11-17-2022
The PEOPLE of the State of New York v. N.F., Defendant.
The instant matter concerns a judicial determination of the Defendant's Sexual Offender Risk Level Assessment pursuant to Correction Law § 168-n.
The Board of Examiners of Sex Offenders submitted a case summary and a Sex Offender Registration Act Risk Assessment Instrument assessing the Defendant a total risk score of 55 (Presumptive Risk Level 1). They also requested an upward departure to Risk Level 2. The People assessed the Defendant total risk score of 85 (Presumptive Risk Level 2).
The Defendant submitted opposition wherein he contested the point allocations for Risk Factor 3 and Risk Factor 5. The basis of their opposition was that there was insufficient scientific reliability as to the risk to re-offend for those point allocations. In other words, the Defendant argued that the Risk Assessment Instrument for internet child pornography cases should not include Risk Factor 3 and Risk Factor 5. Due to the potential that a variety of experts may be required to testify regarding this topic, however, the Defendant requested, in the interest of judicial economy, that the Court hear arguments as to downward departure (with a stipulation as to the point allocations for Risk Levels 3 and 5). The Defendant would reserve argument on the point allocations if the Court declined to grant the downward departure. The Court granted their application and the Court, on September 12, 2022, conducted the Risk Level Assessment hearing with respect to any departures.
The People and the Defendant each took part in the hearing. Based on the below decision, the Defendant is designated a presumptive Risk Level 2 (based upon the Defendant's stipulation). The Court additionally grants the Defendant's request for a downward departure to Risk Level 1. Therefore, the Defendant is designated a Risk Level 1 Sex Offender. The People's request for an upward departure is denied.
The stated facts are based upon reliable evidence relevant to the determinations. See Correction Law § 168-n(3). See also People v. Mingo , 12 NY3d 563, 910 N.E.2d 983 (Ct. Appeals, 2009). This evidence includes trial testimony, probation report, and police documents. The Court notes that the Defendant does not contest the documents’ admissibility.
The instant application is the result of a tip made to the National Center for Missing and Exploited Children on February 26, 2015. The tip contained information relating to a Dropbox file sharing program that contained five videos of child pornography. The investigation led to the execution of a search warrant at the Defendant's residence, on November 3, 2015, wherein he admitted to owning the Dropbox account. A Dropbox account is a filesharing service which permits users access to the files through the owner's invitation. The instant Dropbox account contained five computer files that depicted videos of child pornography. Additionally, a .pdf file was discovered which was a manual, called "Child Love," that provided instructions on how to groom and sexually abuse children. The document was approximately 170 pages long.
The Defendant pled guilty to Knowingly Transporting Child Pornography, 18 U.S.C. § 2252A(a)(1) and Knowingly Possessing Child Pornography, 18 U.S.C. § 2252A(a)(5)(B) and was sentenced to 72 months in federal prison.
The factual narrative of the underlying incident was not disputed. The Defendant, age 24, admitted to authorities that he uploaded the five child pornography videos to his Dropbox account in February 2015. He also admitted that he possessed pornography videos on an external hard drive. The Federal Presentence Investigation Report stated that approximately 800 videos were recovered from the external hard drives. The Defendant stated that he viewed both child and adult pornography and that he viewed child pornography approximately 10% of the time.
The Defendant stated that he began looking at pornography when he was approximately 12 years old and, at the age of 14, the Defendant accessed gay Internet Chat Rooms. During a chat, someone sent him both adult gay pornography and child pornography. He denied ever sexually abusing a child but acknowledged having some sporadic sexual fantasies about children. He also identified as being homosexual and had engaged in approximately fifteen sexual experiences. All were with adult males and never with a child.
With respect to the .pdf file titled, "Child Love," a computer forensic analysis, completed during the federal criminal investigation, showed that the .pdf was downloaded in 2010 (when the Defendant was 15 years old). Moreover, the analysis showed that the Defendant only opened the file one time, when he was 15. The forensic analysis further showed that the file was accessed (but not opened) three additional times in 2015. As such, the file was probably accessed due to anti-virus application scanning.
The Defendant history of drug or alcohol included an arrest in 2014 for a misdemeanor drug possession charge that was ultimately dismissed. He admitted to the U.S. Probation Department that he began socially drinking alcohol and using marijuana at the age of 14. From the age of 16 or 17 he used marijuana daily until he was arrested in 2014. At the age of 18, the Defendant used a variety of drugs including cocaine (monthly), Xanax (a couple of times), and hallucinogens. His drug use ended two years later when he underwent outpatient substance abuse treatment. His outpatient treatment was modified to inpatient treatment as he tested positive for cocaine. During his incarceration, the Defendant completed 500 hours of the Residential Drug Abuse Treatment Program. He additionally continues with weekly treatment sessions as part of his mandatory release provisions which includes toxicological testing.
The Presentence Investigation Report noted that the Defendant worked for the NYC Summer Youth Employment Program after he graduated high school and, then again, after his freshman college year. He became a camp counselor and worked with five and six year-olds before working with 11 and 12 year-olds. He denied any sexual contact with minors and a follow up investigation showed that there were no complaints of inappropriate behavior.
The Defendant, prior to his conviction, sought out sex offender treatment and was evaluated by psychologists. The Defendant was diagnosed, by Dr. Berrill, as suffering from recurrent and severe Major Depression, without psychotic features. He was additionally diagnosed with adjustment disorder with anxiety, paraphilic disorder (compulsive use of pornography) and personality disorder.
The Defendant's parents were initially interviewed for the Presentence Investigation Report and stated that the Defendant's treatment was based on a genuine rehabilitative desire. They also expressed support for the Defendant. Since his prison release, he lived with his parents. In support of the downward departure, his parents submitted affidavits which noted that all electronic devices that can access the internet are password protected and the Defendant was not provided the passwords. The affidavits detailed their relationship with the Defendant and how the instant matter impacted him and their family. Generally, the Defendant's parents were incredibly supportive of the Defendant and acknowledge the necessary commitment and restrictions. His mother also noted that, since his release, the Defendant was sober and not accessed any pornography.
The Defendant submitted an affidavit which discussed the details surrounding the offenses and the resulting impact. The Defendant detailed, in great specifics, his efforts at rehabilitation and his current full-time employment status. The Defendant noted that he obtained an Associate's Degree and anticipates earning a Bachelor's Degree in 2023. Lastly, the Defendant noted that he has always taken responsibility for his conduct and the resulting harm while still feeling shame and guilty for his decisions.
PRESUMPTIVE RISK LEVEL
The Board contends that the Defendant is a Risk Level 1 Offender and should be assessed with 55 points, as follows:
• 30 points - Risk Factor 5: based on the age of victim being 10 or less.
• 10 points — Risk Factor 8: based on the Defendant's age of first sex crime being 20 or less.
• 15 points — Risk Factor 11: based on the Defendant's history of drug abuse.
The Board recommended an upward departure to Level 2. The People's submission also contains the above points but also recommends that the Defendant be assessed an additional 30 points under Risk Factor 3 for there being more than three or more victims. The People's original submission did not recommend any departures. Subsequently, on the day of the hearing, the People submitted a second submission (based on the belief that a previous submission was not filed) and requested an upward departure to level 3.
The Court, based on the Defendant's prior reservation of rights, finds the Defendant a Risk Level 2 Offender. Based on the below decision, the Defendant's motion for a downward departure is granted. The Court additionally finds that that the People's supplemental filing requesting an upward departure was invalid. Even if the Court were to render a decision on the request for the upward departure, the Court would decline to grant their application.
FINDINGS
The Defendant argued that he should be granted a downward departure to Risk Level 1. "An offender seeking a downward departure from the presumptive risk level has the initial burden of (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is not otherwise taken into account by Guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence. Only if this twofold showing is made does the court have the ‘discretion to grant or deny the departure application based upon an examination of all circumstances relevant to the offender's risk of reoffense and danger to the community.’ " People v. Curry , 158 AD3d 52, 58, 68 N.Y.S.3d 483 (NY App. Div. 2017), leave to appeal denied, 31 NY3d 905, 103 N.E.3d 782 (2018) [internal citations omitted].
The Defendant submitted that a downward departure was appropriate based upon large variety of factors:
1. Scientific research shows that child pornography offenders have a low risk to reoffend.
2. The recent risk assessment by an expert establishes that the Defendant has a low risk to reoffend.
3. The Defendant's lack of any prior sex offense convictions.
4. The Defendant successfully completed substance abuse treatment and continues to maintain sobriety.
5. The Defendant's exceptional response to treatment.
6. The Defendant's profound acceptance of responsibility.
7. There is extensive familial support in conjunction with stable employment.
8. The Defendant was sentenced below standard federal guidelines and will continue to be under federal probation for fifteen years.
The People opposed the Downward Departure on the basis that many of the provided reasons for the departure are not mitigating factors. The People additionally questioned the relevance of the expert assessments based on it being a new methodology. As to some of the specific factors, the People argued that the response to treatment was not exceptional and that the Defendant's family support did not warrant a downward departure.
The Court is quite cognizant of the complex difficulties when determining the appropriate Risk Level for internet child pornography cases. The difficulty occurs because internet child pornography cases are unlike other sexual assault cases. For example, a twenty year-old who possess five videos of child pornography are generally assessed 90 points (Risk Factors 3, 5, 7, 8). Similar points (85) would be assessed for a twenty year old male who displayed a weapon to a stranger and then raped her (Risk Factors 1, 2, 7, 10). Those two cases (internet child pornography and a gunpoint rape of a stranger) should not be comparable when it comes to SORA determinations. Even though the Court recognizes that there may be an anomaly in assessing points to child pornography offenders (See, People v Johnson , 11 NY3d 416, 421, 872 N.Y.S.2d 379, 383 (Ct. Appeals, 2008), the Court is also cognizant of the devastating and ongoing impact that child pornography has on the children that are depicted in the videos. The Sex Offender Board, in 2012, recognized this same complexity and therefore issued a document titled, "Scoring of Child Pornography Cases Position Statement" in an effort to more accurately reflect the risk. Their rationale was that "the majority of offenders convicted of child pornography offenses will be scored the same when there are clearly vast differences amongst these types of offenders." See, Position Statement , dated 6/1/12. The Court of Appeals, however, stated that the "Position Statement" would not be legally binding because the Board declined to attribute "any legal significance to that document." See, People v. Gillotti, 23 NY3d 841, 859, 994 N.Y.S.2d 1, 13 (Ct. Appeals, 2014).
Just as the above shows the various complexities in internet child pornography cases, these are the same inherent issues in determining whether a downward departure is appropriate. As detailed below, the Court finds that there are appropriate mitigating factors, supported by a preponderance of the evidence, that tends to establish a lower likelihood of re-offense or danger to the community which is not taken into account by the Guidelines.
First, the Defendant received points under Risk Factor 8 for his being under 20 years old when he committed his "first sex crime." Not taking into account for this Risk Factor was that the Defendant was also a child sexual abuse victim himself when, at the age of 14, somebody emailed him adult pornography and child pornography. The People, in their submissions, give great import to the .pdf entitled "Child Love." The relevance of the document is discussed below but it cannot be ignored that the Defendant was only 15 years old when he was given the document by an adult male. Therefore, the Risk Assessment Instrument penalizes the Defendant for committing a sex crime (possessing internet child pornography) at a young age but does not also consider that he also was a child sexual abuse victim.
Second, it is axiomatic that a great concern in internet child pornography cases is the Defendant's ability to access the internet. In the instant matter, the Defendant's parents both submitted affidavits with respect to their reactions to the subject crimes and their ongoing support for the Defendant. His parents noted that all electronic devices that can access the internet are password protected and the Defendant is not provided the passwords. This heightened safeguarding of the internet is not taken into account in the Risk Assessment Instrument. Although the RAI has a section concerning the "Release Environment," none of the factors specifically relate to the heightened protections that preclude the Defendant from accessing the internet.
Third, the Defendant willingly engaged in treatment and there was an exceptional response. The submissions detail the extensive treatment that the Defendant completed. He began sex offender and substance abuse treatment prior to his conviction and continues through the present. While incarcerated, he completed a 500 hour program for drug abuse. Since his release, he participated in group sessions and individual sessions. He also successfully completed "after-care therapy sessions" after completing his drug therapy programs. The reports, attached as exhibits to the Defendant's submission, detail his exceptional response and his affidavit also shows his sincerity in seeking out treatment. See People v. Alexander , 144 AD3d 1008, 41 N.Y.S.3d 746 (NY App. Div. 2016) (an exceptional response to treatment can be the basis for a downward departure); Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 17 [2006]. The Court additionally notes that his exceptional response was also reflected in his affidavit, along with his parent's affidavits. At no point did the Defendant attempt to excuse his conduct but instead explained the insights that he obtained through treatment. For example, the Defendant wrote, "I didn't take into consideration the impact my actions would have I have learned how just by viewing and downloading child pornography I was creating a demand for the abuse that is inflicted upon the victims I take full accountability and responsibility for my actions, and every day I work towards my goals to gain back the trust of my loved ones, and society as whole." Defendant's submission , Exhibit W at ¶¶ 28-29.
Lastly, the Court notes that the above factors did not independently form the basis for the downward departure. Instead, the Court finds that all of the circumstances, en toto form the basis. In People v. Madison , the Second Department Appellate Division noted that "[r]ehabilitation on the basis of the totality of the record is a mitigating factor that is not taken into account by the Guidelines or the RAI." See, People v. Madison , 98 AD3d 573, 575, 949 N.Y.S.2d 701, 702-703 (2nd Dept., 2012). In Madison , the requested departure from Level 2 to Level 1 was not granted. The Second Department, Appellate Division upheld the refusal because defendant's positive personal gains while incarcerated did not outweigh the negative factors which included the circumstances of the crime (robbed complainant and then rubbed his penis against her buttocks under her clothing while threatening to shoot her), his continued drug use, and conviction for promoting prison contraband.
In the instant case, the Defendant has not faltered since he was arrested. His cooperation began at the time of his arrest when he immediately gave a full confession and directed the police to where they could recover additionally child pornography. There are no reports of any drug relapses or prison infractions. The Defendant's treatment was exceptional and extensive. Moreover, the Defendant's parents submitted affidavits which detail their relationship with the Defendant and how the instant matter has impacted both him and their family. Generally, they are incredibly supportive of the Defendant and acknowledge the necessary commitment and restrictions. It is noteworthy that neither of the Defendant's parents attempt to minimize or excuse the Defendant's prior conduct. His father appears genuine as he recalled that, when he heard about the Defendant's actions, he told the Defendant that they would not turn their back on him but "it certainly was not an easy task." Defendant's submission , Exhibit X at ¶¶ 28-29. The Defendant's father discussed how they researched the specialists to treat the Defendant and they also travelled weekly (250 miles) to visit him during the incarceration. The Defendant's mother provided an affidavit that speaks in support of the probation conditions that prohibit internet activity and acknowledges that the Defendant's conduct was wrong. She also wrote about the support at home and the recognition by the Defendant, and his family, that the Defendant's prior actions will continue to impact the Defendant.
A review of the Defendant's submission shows that the Risk Assessment Instrument did not take into account the various mitigating factors raised by the Defendant. Through all of these factors, the Defendant has a lower likelihood of reoffense and also poses a lesser danger to the community. Based on the above, the Defendant's request for a Downward Departure is granted.
The People initially request a finding that the Defendant be found a Level 2 Offender. However, on the day of the hearing, the People requested an upward departure to Level 3 and argued that the People did not believe that the prior prosecutor submitted any paperwork. The Court finds that the original submission is controlling. Essentially, the People stated that they only submitted the second submission because they thought the first was not filed. But since the first submission was filed, the second submission was unnecessary. Even if the Court were to accept the second submission, the Court would not grant the upward departure to Level 3.
"A court has the discretion to depart from the presumptive risk level based upon the facts in the record, but a departure from the presumptive risk level is warranted only where there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines.’ " People v Riley , 85 AD3d 1141, 1141, 926 N.Y.S.2d 303, 303 (2nd Dept., 2011)quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006 ed.]; see also People v Cohen, 73 AD3d 1003, 900 N.Y.S.2d 676 (2nd Dept., 2010) ; People v Lyons , 72 AD3d 776, 900 N.Y.S.2d 97 (2nd Dept., 2010). After determining whether the factor is considered by the guidelines, the Court must decide whether the People have sufficient evidence to meet their burden that the alleged aggravating circumstance exists. See , Correction Law § 168—n[3] ; Guidelines at 4, 7; see also , People v. Balic , 12 NY3d 563, 570—577, 883 N.Y.S.2d 154 (Ct. Appeals, 2009) (analyzing whether reliable hearsay met clear and convincing standard of proof and therefore warranted an upward departure). Once the above factors are met, the court still has discretion to refuse to depart or to grant a departure by exercising its discretion by weighing the aggravating factors to determine whether the totality of the circumstances warrants a departure to avoid an under-assessment of the defendant's dangerousness and risk of sexual recidivism. Id.
Based on the below analysis, the Court finds that an upward departure is not warranted. The People contend that an upward departure is appropriate due to the Defendant's possession of the 170 page "Child Love" manual. There are obvious concerns with the Defendant possessing this document but the Court is mindful that the Defendant was sent the document when he was still a child. Essentially, he was the victim of child abuse as an unknown adult sent the 15 year-old Defendant child pornography and a document about how to groom children for sexual abuse.
The People additionally claim that an upward departure is warranted because the Defendant worked as a camp counselor while he possessed the "Child Love" manual. While, at first glance, these two incidents appear inter-related, a closer inspection shows that they are not connected. First, the Defendant only reviewed the manual one time, at the age of 15. He then worked as a camp counselor at the age of 17 and 18. His employment was through SYEP ("Summer Youth Employment Program") which is a New York City program that hires high school and college students for summer employment in a variety of industries. Even though the Defendant still possessed the document while working for SYEP, the evidence shows that he did not access or read the document. Moreover, it is highly improbable that the Defendant was able to read the 170 page manual (at the age of 15), recall the documents instructions over two years later, and take actions based on the prior reading. It is even more highly improbable because an investigation showed that there were no complaints of inappropriate behavior during his employment.
To be clear, the evidence shows that the Defendant only accessed the manual one time, when he was 15. If the manual was read, or accessed, when the Defendant was 17 or 18, then the Court would not come to the same determination.
CONCLUSION
The Defendant is determined, by stipulation, to be Risk Level 2 Offender. The Defendant has shown, by a preponderance of the evidence, that a downward departure to Level 1 is appropriate. Accordingly, it is hereby
ORDERED, that the Defendant is a Level 1 Offender.
This constitutes the decision, opinion and order of the court.