People v. Banuchi

 Pursuant to Correction Law §168-o, the defendant, Louis Banuchi, petitions this Court for a downward modification of his risk Level Two sex offense classification. The defendant, after a hearing conducted pursuant to the Sex Offense Registration Act (“SORA”), was classified a Level Two sex offender with no designation by the Honorable Dorothy Chin-Brandt.¹ In support of his application for a downward modification, the defendant alleges the following factors: (1) he has not been charged with a crime since 2007; (2) he has been compliant with probation; (3) he had participated in a sex offender treatment program; (4) he is 55 years old; (5) he is physically disabled; (6) he has a strong family support network; and (7) he has been assessed a low risk to reoffend. The People oppose the defendant’s petition in its entirety.BackgroundBy way of background, the defendant was arrested on August 29, 2007 for possession of multiple images of underaged children engaged in sexually explicit activity (People Resp. at 1; Sent Tr. at 3). Notably, a forensic review of the defendant’s electronic media recovered at the time of his arrest revealed that several of these images were of his 13- year old stepdaughter, wearing nothing more than a bikini, posed in a manner that exposed her crotch area (People Resp. at 1-2; Sent Tr. at 12). The People further allege, and the defendant has not disputed, that these images were taken by the defendant (Id at 3).² The People further set forth that the forensic review determined that the defendant had shared some of the pornographic images of children with other individuals, and that his internet history revealed that he had actively searched for these explicit images (People Resp. at 1-3).On February 4, 2009, the defendant pled guilty to a single count of Possessing a Sexual Performance by a Child (PL §263.16), an “E” felony, in full satisfaction of the charges against him. On February 5, 2010, a SORA hearing was conducted, and the defendant was designated a risk Level Two sex offender, with no designation (People Resp. at 2; Sent Tr. at 22-23). The defendant’s motion for a downward departure at the time of his sentencing was denied (see Sent Tr. at 17-20). The defendant was sentenced to probation for a term of 10 years and was required to successfully complete a sex offender program to be monitored by Probation (Id. at 22).DiscussionCorrection Law §168-o (2), enables a sex offender whom is required to register under SORA, to petition the sentencing court for modification of his risk level classification³ (People v. Lashway, 25 NY3d 478 [2015]). Any sex offender seeking to have their risk level modified bears the burden of establishing, by clear and convincing evidence, that such a modification of their risk level classification is appropriate (id.; see also, Correction Law §168-o (2)). When petitioning the court for a downward modification, a registered sex offender is required to submit a copy of the petition, along with any and all accompanying documentation, to the Board of Examiners (“Board”) (see Deft. Mem. at 2). While the Board is required to provide the sentencing court with an updated recommendation, the sentencing Judge is not bound by the recommendation provided by the Board (Lashway at 483).In the instant case, the Board has recommended against a downward modification of the defendant’s risk classification, citing that he has failed to establish, by clear and convincing evidence, that a departure is appropriate (Board R. &R., at 5). Specifically, the Board expressed concern about the defendant’s inability to maintain sobriety, and his conflicting statements which appear to minimize or negate his acceptance of responsibility (Id). The Board further opined that:Once Mr. Banuchi has demonstrated that he has lived offense-free in the community without the external constraints of supervision, has completed all forms of treatment, provided a recent comprehensive sex offender risk assessment or evaluation indicating he is at low risk and has remained sober for an extended period of time, he should petition the Court again.(Board R. & R., at 5).Upon reviewing the court file and all papers submitted, this Court agrees with the Board that the defendant has failed to meet his burden of establishing, by clear and convincing evidence, that a downward modification of his risk level classification is appropriate. In the instant case, the defendant primarily relies on the fact that he has completed drug treatment and sex offense treatment programs and has had no other arrest aside from the conviction in the instant case (Deft. Mem at 7; 10-14). However, although the defendant completed a drug program, the defendant concedes that in October 2015, his physical disabilities led him to relapse (Deft. Petition at 11-14). As was identified by the People and the Board, the abuse of alcohol and drugs are highly linked to sex re-offending⁴ (People Resp. at 4-5; Board R. & R., at 3). Thus, the defendant’s inability to handle stressful situations without reverting to substance abuse makes him a substantial threat to society since his risk of reoffending is elevated. The defendant’s other bases for seeking a downward departure, to wit, his advanced age (55), physical disability, good character and close familial relationships in support of his application for a downward modification are equally unavailing (Deft Petition at 2-3). Neither the defendant’s age nor physical disabilities are sufficient to warrant a downward departure (People v. Charles, 2018 WL 242512 [2d Dept 2018]). Lastly, while this Court is sympathetic to the strains the defendant’s risk classification may have on his family, which existed at the time of his sentencing in the instant case, albeit with a different child (Sent Tr. at 24-25), such reasons are not a basis for a downward departure of the defendant’s risk level classification (see e.g, Board R. & R., at 2). As such, the defendant has failed to establish by clear and convincing evidence that a downward modification is appropriate.Moreover, while the defendant has admitted that he possessed child pornography, the Court is troubled by the defendant’s lack of acknowledgment of the child victimized in his own family, to wit, his stepdaughter. Indeed, from the record of the proceedings in this case, these photographs of his step-daughter were taken by the defendant, negating any claim by the defendant that he simply viewed child pornography on the internet (Sent Tr. at 12).ConclusionAlthough it appears that the defendant may have made strides in his recovery, his relatively recent relapse, in conjunction with his failure to fully accept responsibility for his actions, makes him unsuitable for a downward departure of his sex offense risk level calculation.Accordingly, for the foregoing reasons, defendant Louis Banuchi’s petition to have his risk level classification modified from a risk Level Two to a risk Level One is denied.This opinion constitutes the decision and order of the Court.Dated: Kew Gardens, New YorkAugust 10, 2018