DECISION & ORDER On June 22, 2015, the defendant pleaded guilty to two counts of promoting a sexual performance by a child in full satisfaction of a 5962-count indictment stemming from his possession of numerous computer files containing child pornography, including images of very young children. On July 7, 2015, the court sentenced the defendant, in accordance with his plea agreement, to consecutive terms of two to four years of imprisonment. In anticipation of the defendant’s release from incarceration, on May 15, 2019, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (RAI) which scored the defendant 45 points, indicating that he was at low risk of reoffending and should presumptively be classified a level one sex offender. The Board’s RAI scored the defendant 30 points under risk factor 5 based on the age of the children depicted in the pornographic files he possessed, and 15 points under risk factor 9 for prior non-violent felony convictions. Based upon a “Position Statement” issued in 2012, the Board did not score the defendant points under risk factor 3 for the number of children depicted in the files he possessed, or under risk factor 7 for being a stranger to those children. In its 2012 Position Statement, the Board expressed concern that scoring child pornography offenders points for being a stranger for the children depicted and for having multiple victims “produces an unintended, anomalous result as 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.” Although the Board did not recommend an upward departure from the defendant’s presumptive risk level, it noted that such a departure might be warranted if the court had information indicating the existence of aggravating factors discussed in its Position Statement, which include the number of images possessed, and the length of time the offender has been collecting and/or viewing child pornography. On July 2, 2019, the People served the defendant with notice pursuant to Correction Law §168-d (3) of their intent to seek a determination that he is a level three (high risk) offender. The People argued that in addition to the 45 points scored by the Board, the defendant should be scored 30 points under risk factor 3 (three or more victims), 20 points under risk factor 7 (stranger relationship to the victims), 10 points under risk factor 12 (acceptance of responsibility), and 15 points under risk factor 14 (release without supervision). The addition of these point would bring the defendant’s total point score to 120, a presumptive level three. In support of the request for additional points, the People alleged, based upon information obtained from sources including the grand jury minutes, police reports, the pre-sentence report, and a forensic report, that the defendant was in possession of 316 videos and 2665 images depicting children being sexually abused, that many of the children in the defendant’s collection were under the age of 10, and that a large number of children appeared to be under the age of 5. The People added that the defendant used various search terms to find this material, and that he was a stranger to the children depicted in the images and videos in his collection. With respect to risk factor 12, the People argued that despite his guilty plea, the defendant had not genuinely accepted responsibility for his conduct because he had attempted to minimize his involvement in his crimes and had not expressed any remorse for his activities or empathy for the victims. At the SORA hearing conducted on August 5, 2019, the defendant’s counsel did not object to the 45 points scored by the Board but objected to the additional points sought by the People (2). At the outset of the hearing, the prosecutor outlined the points sought by the People, citing People v. Johnson (11 NY3d 416 [2009]) and People v. Gillotti (23 NY3d 841 [2014] in support of her argument that 30 points should be scored under risk factor 3 for the number of victims based upon the defendant’s possession of 316 videos and 2,665 images depicting children being sexually abused, and that 20 points should be scored under risk factor 7 for relationship with the victim because the defendant’s conduct in “searching for, downloading, saving and sharing of these files further victimized each of the children depicted in this material,” and the defendant “was a stranger to the children depicted in these images and videos” (4). The prosecutor also asked the court to score the defendant 30 points under risk factor 5 for the age of the children depicted in the materials the defendant possessed, stating that based upon her own observation, a number of these children appeared to be under the age of 5 (4). With respect to risk factor 9, the prosecutor requested that the defendant be scored points for his prior convictions, noting that he had several prior convictions including a conviction of attempted robbery in the third degree, and had been sentenced as a second felony offender in the instant case (6). Next, the prosecutor requested that the defendant be scored 10 points under risk factor 12 for failure to accept responsibility because he had continuously sought to minimize his involvement in the crimes and had not shown remorse or expressed empathy for the victims (6). In response to the court’s questioning, the prosecutor indicated that the defendant’s lack of remorse was demonstrated by his plea-pleading memorandum, and statements made upon his admission into the custody of the Department of Corrections (7). Finally, the prosecutor asked that the defendant be scored 15 points under risk factor 14 for release without supervision because he had an immigration hold, and, “upon information and belief,” was going to be deported upon his release from prison (7). In response, defense counsel argued that the People’s statement that “upon information and belief” the defendant was going to be deported did not constitute clear and convincing evidence that he would be released without supervision (8). He also noted that the defendant was fighting deportation, and at worst would be “in immigration’s custody for a long time” until the issue of his deportation was resolved (8). When the court asked whether the defendant’s conviction was for a sex offense that qualified for mandatory deportation, the prosecutor responded that it did so qualify (8). Continuing, defense counsel contended that the defendant had accepted responsibility for his crime by admitting his guilt when interviewed for preparation of the pre-sentence report, and at DOCCS reception (9). Counsel also pointed out that the defendant had completed a sex offender program while incarcerated and submitted that he would not have been able to do so had he denied his guilt (9). With respect to risk factors 3 and 7, counsel emphasized that the Board had considered those factors and decided not to score the defendant points, and he requested that the court abide by the Board’s level one recommendation (10). At the conclusion of the hearing, the court reserved decision. Shortly thereafter, the People provided the court and defense counsel with the grand jury testimony of the Department of Homeland Security Special Agent who conducted a forensic analysis of the defendant’s computer, and a portion of the forensic report, which were among the materials relied upon and referenced in the People’s papers to support the requested assessment of points. For the reasons which follow, the court now designates the defendant a level two offender. In establishing an offender’s appropriate risk level under SORA, the People have the burden of proving the facts supporting the determination by “clear and convincing evidence” (Correction Law §168-n [3]; see People v. Mingo, 12 NY2d 563, 571 [2009]; People v. Holmes, 166 AD3d 821, 822 [2nd Dept. 2018]). “In assessing points, evidence may be derived from the defendant’s admissions, the victim’s statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders…or any other reliable source, including reliable hearsay” (People v. Crandall, 90 AD3d 628, 629 [2nd Dept. 2011]; see People v. Mingo, 12 NY3d at 573; People v. Somodi, 170 AD3d 1056 [2nd Dept. 2019]). The court has been provided with the risk assessment instrument (RAI) and case summary prepared by the Board, and the RAI prepared by the People, and will examine each risk factor for which points are sought and determine the defendant’s score (see Correction Law §168-n [1], [2]). Both the Board and the People score the defendant 30 points under risk factor 5, which assigns 30 points where the victim is age 10 or less. The assessment of these points is supported by reliable evidence including the Case Summary and Probation Department presentence report, which both note that a “forensic preview” of the Dell desktop computer seized from the defendant’s apartment contained at least four videos depicting “girls who appeared to be between the ages of 6 to 13 years old being vaginally and anally penetrated by adult males.” In addition, the Special Agent who examined the defendant’s computer testified in the grand jury that he found 316 videos and 2665 images of child pornography on the computer hard drive, and that the children depicted ranged anywhere from the age of 1 to the age of 16. The Board and the People also score the defendant 15 points under risk factor 9 for his prior felony convictions. These points are uncontested and supported by reliable evidence consisting of the Case Summary and presentence report, which indicate that the defendant was convicted of robbery in the third degree in 1978, and attempted robbery in the third degree in 2007. The court now turns to the additional points sought by the People on their RAI, all of which are contested by the defendant. In support of their request for the addition of 30 points under risk factor 3 (three or more victims), and 20 points under risk factor 7 (stranger relationship to the victims), the People established, by clear and convincing evidence, that the defendant possessed pornographic images of multiple children, and that he was a stranger to those children. The Court of Appeals has recognized that the children depicted in child pornography are victims of sex offenses, and that the Board’s 2012 Position Statement does not bar the assignment of points under risk factors 3 and 7 in child pornography cases (see People v. Gillotti, 23 NY3d 841 [2014]), People v. Johnson, 11 NY3d 416 [2009]). Accordingly, the court will assess the defendant 30 points under risk factor 3, and 20 points under risk factor 7. The People also ask the court to score the defendant 10 points under risk factor 12 for failure to accept responsibility. In its Case Summary, the Board explained that it did not score the defendant points for this risk factor because he pleaded guilty and completed a sex offender treatment program during his incarceration. The People contend that the defendant’s acceptance of responsibility was not genuine, pointing to his efforts to minimize his culpability for the crime, and his failure to express remorse and empathy for the victims of child pornography. In its Guidelines, the Board states that “an offender who does not accept responsibility or minimizes what occurred is a poor prospect for rehabilitation” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]). The Board explains that acceptance of responsibility is critical because “an offender’s ability to identify and modify the thoughts and behaviors that are proximal to his sexual misconduct is often a prerequisite to stopping that misconduct (Guidelines at 15). The Guidelines call upon the court to “examine the offender’s most recent credible statement…and seek evidence of genuine acceptance of responsibility” (Guidelines at 15). As an example, the Board notes that an offender “who pleads guilty but tells his pre-sentence investigator that he did so only to escape a State prison sentence has not accepted responsibility” (Guidelines at 15-16). Here, the defendant pleaded guilty, admitted his guilt to the pre-sentence investigator, and completed a sex offender treatment program during his incarceration. Although these actions provide some evidence of acceptance of responsibility, the defendant has also made statements minimizing his criminal conduct, which call into question whether his acceptance is genuine. According to the Case Summary, “[a]t DOCCS reception, [the defendant] admitted his guilt stating it was in exchange for a lesser prison term.” This suggests that the defendant pleaded guilty for the sake of expediency (see People v. Benitez, 140 AD3d 1140 [2nd Dept. 2016]). The Case Summary further states that the Board received written correspondence from the defendant on March 27, 2019, “in which he included copies of his SOCTP monthly evaluations and his ‘Disclosure’, in which he notes that he did not actively seek out child pornography, but that he knew it was there and did not delete it. He now recognizes that there were victims to his crime.” While the defendant’s “Disclosure” statement indicates that he has come to the realization that child pornography is not a victimless crime, his claim that he did not “actively seek out child pornography,” but simply failed to delete it from his computer clearly demonstrates his failure to fully and genuinely accept responsibility. The defendant’s assertion that he did not actively seek out child pornography is belied by the grand jury testimony of the Special Agent and the forensic report, which indicate that the defendant actively sought out child pornography by using search terms that are unique to child pornography, such as “PTHC,” “tiny models” and “Lolita.” Moreover, the fact that 316 videos and 2,665 images of child pornography were found on the defendant’s computer itself negates the defendant’s claim that he did not seek out such materials. The fact that the defendant provided the Board with a “Disclosure” statement in which he refused to acknowledge the intentional nature of his conduct is extremely troubling to the court. The defendant’s various statements, taken together, do not reflect the genuine acceptance of guilt contemplated by the Guidelines (see People v. Collins, 159 AD3d 1034 [2nd Dept. 2018]; People v. Stapleton, 125 AD3d 951, 952 [2nd Dept. 2015]). Accordingly, the court will assess 10 points under risk factor 12. Finally, the People ask the court to score the defendant 15 points under risk factor 14 for release without supervision. The Case Summary states that an Administrative Deportation Order was lodged against the defendant on November 10, 2017, and that he is subject to deportation upon his release. The Case Summary notes that if the defendant is not deported, “it is anticipated that he will be supervised on a specialized Community Supervision caseload until the maximum expiration of his sentence on April 15, 2022.” While the Board did not score the defendant points under risk factor 14, it stated that “[i]f the court is aware that any arrangements have been definitively made to escort the offender back to his home country upon his release from DOCCS, then he should be assigned points for his release without the benefit of supervision.” However, at the SORA hearing, the prosecutor simply stated that “the defendant has an immigration hold,” and that, based upon information and belief, the defendant would be deported upon his release from prison. These statements fail to show that any arrangements have been definitively made to escort the defendant back to his home country upon his release. Moreover, while the defendant may well be subject to mandatory deportation, defense counsel stated at the hearing that the defendant intended to oppose any attempt to deport him and pointed out that deportation proceedings could be lengthy. Under these circumstances, the court finds that the People have failed to prove, by clear and convincing evidence, that the defendant should be assessed 15 points under risk factor 14. This brings the defendant’s total score to 105, making him a presumptive level two offender. The court will consider the defendant’s request that he be adjudicated a level one offender as recommended by the Board to be, in effect, a request for a downward departure. Absent the addition of 50 points under risk factors 3 and 5, the defendant’s score would be 70, which falls within the presumptive level one range. Although the plain language of the SORA Guidelines supports the imposition of points under risk factors 3 and 7, the Court of Appeals has also recognized that “scoring points under factors 3 and 7 may overestimate the risk of reoffense and danger to the public posed by quite a few child pornography offenders” (People v. Gillotti, 23 NY3d at 860). In addressing this concern through the departure process, the Court of Appeals advised that “a SORA court should, in the exercise of its discretion, give particularly strong consideration to the possibility that adjudicating the offender in accordance with the guidelines point score and without departing downward might lead to an excessive level of registration” (id.). However, taking into consideration all of the circumstances of this case, including the large number of images pornographic images possessed by the defendant, the nature of those images which portray children being raped and sodomized, and the very young age of the some of the children depicted, the court does not believe that adjudicating the defendant a level two offender in accordance with his recalculated point score would overstate his risk level (see People v. Rivas, 173 AD3d 786 [2nd Dept. 2019]; People v. Kaiser, 168 AD3d 1002, 1003 [2nd Dept. 2018]; People v. Tirado, 165 AD3d 991, 992 [2nd Dept. 2018]). Accordingly, the court adjudicates the defendant a level two offender. This constitutes the decision and order of this court. Dated: August 13, 2019 Kew Gardens, New York
