PROCEDURAL HISTORY Defendant was charged in a felony complaint with ten counts of Possessing an Obscene Sexual Performance by a Child (PL §263.11) and ten counts of Possessing a Sexual Performance by a Child (PL §263.16) based on an incident which occurred on or about July 27, 2021. The felony complaint alleged, in pertinent part, that on that date and time, in the county of the Bronx, defendant possessed a Samsung Galaxy S7 phone which contained five (5) videos depicting approximately seven-to-ten year old females performing oral sex on an adult male penis; one (1) video of two (2) approximately seven-to-ten year old females posing and touching their genitalia; two (2) still images of an approximately seven-to-ten year old female performing manual stimulation of an adult male penis and two (2) still images of an approximately seven-to-ten year old female performing sexual intercourse with an adult male penis. On May 13, 2022 in Part A, defendant pleaded guilty by Superior Court Information to one count of Possessing an Obscene Sexual Performance by a Child, a class “E” felony, in exchange for a promised sentence of ten years’ probation with the conditions that he complete the Mustard Seed Program and abide by special sex offender provisions. On that same day, defendant also pleaded guilty to Criminal Possession of a Firearm, a class “E” felony, in exchange for a promised sentence of five years’ probation to run concurrent with his sentence of ten years’ probation on his plea to Possessing an Obscene Sexual Performance by a Child. The case was adjourned to June 23, 2022 for sentence. On June 7, 2022, the People submitted an initial Risk Assessment Instrument (hereinafter “RAI”) to this Court to determine defendant’s “offender risk level,” [ Article 6-C Corr. Law 168(n)-2] pursuant to a Sex Offender Registration Act (SORA) hearing. In the initial RAI, the People assigned defendant thirty (30) points under risk factor three for “Number of Victims,” twenty (20) points under risk factor seven for “Relationship with Victim,” and thirty (30) points under risk factor five for “Age of Victim,” which totaled eighty (80) points thereby scoring defendant at a Level II- “Moderate Risk to Reoffend.” Additionally, the People opposed any request for a downward departure to a Level I- “Low Risk to Reoffend” based upon defendant’s possession of “at least 138 videos and images of child pornography some of the images depicted female children as young as eight [to] ten years old engaging in actual sexual acts,” People’s Initial Risk Assessment Instrument, p. 2. On August 4, 2022 in Part A, this Court certified defendant a sex offender pursuant to Correction Law §168-d(1), sentenced defendant to ten years’ probation and adjourned the case for a SORA hearing. On September 6, 2022, the People submitted a revised RAI. It scored defendant thirty (30) points under risk factor three for “Number of Victims,” thirty (30) points under risk factor five “Age of Victim,” twenty (20) points under risk factor seven “Relationship with Victim” and notably, ten (10) points under risk factor twelve for “Not Accepted Responsibility” which totaled ninety (90) points thereby still scoring defendant at a presumptive Level II- “Moderate Risk to Reoffend.” The People’s assignment of ten points under risk factor twelve “Not Accepted Responsibility” stemmed from the nature of the statement made by defendant to the Department of Probation in preparation of the pre-sentence report (hereinafter “PSI”). Specifically in that statement, although defendant admitted his guilt to the instant offense, he also said that he “downloaded [the] images to his phone to show his companion and daughter what they could find online and in chatrooms.” He further claimed that his actions “were not done maliciously,” Pre-Sentence Investigation Report, p. 3. The People, in their amended RAI argued that “in making those statements, the defendant minimized the extent of his conduct that he admitted to during the plea colloquy, which warrants a finding that he has failed to take responsibility,” People’s Second RAI p.2. Additionally, the People, in their amended RAI, requested an upward departure from a Level II “Moderate Risk to Reoffend” to a Level III- “High Risk to Reoffend.” In support of their application, the People claimed that defendant’s statement to the Department of Probation that “he allegedly showe[ed] his companion and daughter child pornography amounted to “an admission of the uncharged crime of Promotion of an Obscene Sexual Performance by a Child in violation of P.L. §263.10,” People’s Second RAI, p. 2. On September 28, 2022, in Part A the Court conducted a SORA hearing. Prior to the hearing, defense counsel submitted his own RAI. It assigned thirty (30) points under risk factor three, “Number of Victims” and thirty (30) points under risk factor five, “Age of Victim,” which totaled sixty (60) points thereby categorizing defendant a Level I- “Low Risk to Reoffend.” FINDINGS OF FACT AND CONCLUSIONS OF LAW The purpose of the Risk Assessment Instrument is to “assess the risk of repeated offense by a sex offender and the threat posed to the public safety,” Sex Offender Registration Act, Risk Assessment Guidelines and Commentary [2006]. The Risk Assessment Instrument assigns a numerical value to various factors resulting in a “total risk factor score.” Based on this score, an offender is then categorized into one of three levels of notification, Level One (low risk of reoffense), Level Two (moderate risk of reoffense) or Level Three (high risk of reoffense) (Id). The threat posed by a sex offender depends on two factors: (1) the offender’s likelihood of reoffense and (2) the harm that would be inflicted if he did reoffend. The offender’s risk level determines the amount of information that can be disseminated about him to the public under SORA’s notification procedures (Id). Although, the People’s risk assessment level recommendation serves as a guide, the court is not bound by the People’s recommendation, “from which it may depart in considering the record [made at a SORA hearing],” People v. Lashway, 25 NY3d 478 citing Correction Law 168-n(2), (3); see also People v. Smilowitz, 178 AD3d 1187). At a SORA hearing, the People bear the burden of proof with respect to establishing the facts supporting each risk factor upon which the risk assessment level is based by clear and convincing evidence (see Doe v. Pataki, 3 F.Supp.2d 456; People v. Mingo, 12 NY3d 563). In determining an offender’s risk level, the court is not bound by ordinary rules of evidence and may consider reliable hearsay evidence and any other relevant materials provided by the sex offender and the People, see People v. Mingo, supra. After careful consideration of all evidence adduced at the SORA hearing, this Court makes the following findings of fact and conclusions of law upon which its determinations are based: Under risk factor three “Number of Victims,” defendant is assessed thirty (30) points for “Number of Victims: Three or More.” The People proved this risk factor by clear and convincing evidence through the transcript of defendant’s guilty plea (People’s Exhibit No.4) wherein defendant admitted that he possessed 138 pieces of child pornography depicting at least three children, see People v. Giillotti 23 NY3d 841 People v. Scott, 186 AD3d 1052; People v. Andrews, 136 AD3d 880. Under risk factor five “Age of Victim,” defendant is assessed thirty (30) points for “Age of Victim: ’10 or Less’.” The People proved this risk factor by clear and convincing evidence through the criminal court felony complaint (People’s Exhibit #3) which alleged that defendant possessed five (5) videos depicting ” an approximately seven-to-ten year old female performing oral sex” on an adult male penis and additional still images which depicted “ seven-to-ten year old” females performing various sexual acts. Further, the People satisfied their burden of proof through the transcript of defendant’s guilty plea (People’s Exhibit #4) wherein defendant admitted that at least one of the pieces of child pornography which he possessed depicted a child of “less than eleven years old” (see Correction Law §168-n(3); People v. Gillotti, supra; People v. Scott, supra; People v. Andrews, supra). Under risk factor seven “Relationship with Victim,” defendant is assessed twenty (20) points for “Relationship with Victim: Stranger.” The People proved this risk factor by clear and convincing evidence through the transcript of defendant’s guilty plea (People’s Exhibit #4) wherein he admitted that he had a stranger relationship with his victims. Further, at the SORA hearing, defendant conceded that he was a stranger to the victims depicted in the child pornography. Nevertheless, defendant objected to the imposition of points under this risk factor. Defendant, citing the New York Court of Appeals case, People v. Johnson, 11 NY3d 416 [2008], contended that the scoring of points under risk factor seven “could create an anomaly such that low risk child pornography offenders would be incredibly characterized as Level-II risk although [risk factor seven] might generally be valid for contact offenses, it might create an overestimation of the risk classification in cases of child pornography,” SORA hearing Tr., p. 21, lines 14-19. The People, in response to defendant’s objection, argued that the concern expressed in People v. Johnson, with respect to risk factor seven, “Stranger Relationship” should be negated in this case due to the totality of the circumstances, including the amount of child pornography, specifically, 138 items, that defendant admitted to being in his possession. Legal Analysis In People v. Gillotti, 23 NY3d 841 [2014] the New York Court of Appeals reaffirmed that “As we made clear in Johnson…the plain terms of factor 7 authorize the assessment of points based on a child pornography offender’s stranger relationship with the children featured in his…child pornography files, and thus points can be properly assessed under that factor due to an offender’s lack of prior acquaintance with the children depicted in such files,” [emphasis added]. Indeed, in Johnson, the Court directly held that “…factor 7 unambiguously require[s] the assessment of 20 points against defendant…” People v. Johnson, supra. Further, the Court in Gillotti, supra, in rejecting that defendant’s objection to imposing points under risk factor seven, “Stranger Relationship,”explained the underlying purpose pertaining to this risk factor: “Given that child pornography offenders substantially harm the mental health of abused children and, via the consumption of child pornography, encourage others to commit the hands-on sexual abuse needed to produce that material, it is difficult to credit defendants’ claims that, due to their failure to personally physically abuse children, the risk of harm caused by their offenses should not be accounted for in the manner authorized by the plain language of factor 7 At bottom, there is nothing inherent in child pornography offenses that convinces us to completely ignore the plain language of the guidelines…” People v. Gillotti, supra; (see People v. Scrom, 205 AD3d 1238; People v. Benton, 185 AD3d 1103; People v. Eiss, 158 AD3d 905; People v. Labarbera, 140 AD3d 463). Significantly, however, the Court also addressed the concerns raised by defense counsel by adding the caveat that “in reaching this conclusion, we recognize that scoring points under factor 7 may overestimate the risk of re-offense and danger to the public posed by quite a few child pornography offenders. But we think it best to address that concern through the departure process rather than ignoring the plain language of the guidelines ” Id. Therefore, in the instant matter, based upon the plain language of the RAI, defendant’s request to assign no points under risk factor seven “Relationship with Victim,” is denied, see People v. Gillotti, supra; People v. Johnson, supra; People v. Scrom, supra; People v. Benton, supra; People v. Eiss, supra; People v. Labarbera, supra. Under risk factor twelve, defendant is assessed ten (10) points for “Not Accepted Responsibility.” At the SORA hearing, the People claimed that although defendant admitted guilt to the crime of Possessing an Obscene Sexual Performance by a Child during his plea allocution and to the Department of Probation, his additional statement to the Department of Probation that he “only downloaded the materials to show them to his companion and daughter was actually a minimization of his conduct,” SORA Hearing Tr., p. 11 lines 7-9. As such, the People asserted that defendant should be assessed ten (10) points under this risk factor. Defendant contended that the People failed to meet their burden by establishing, through clear and convincing evidence, that he did not accept responsibility for his crime. Specifically, defense counsel stated that, “[defendant] shared with probation completely his thoughts as to what he did and why he did it, SORA Hearing Tr., p. 15 lines 20-21. Further, defendant’s attorney read an affidavit, signed by defendant and dated September 28, 2022, into the record at the SORA hearing wherein defendant admitted guilt for the instant offense, expressed remorse and embarrassment for his conduct as well as his understanding of the harm caused to the child victims depicted in the pornographic material. Legal Analysis The SORA guidelines provide that “[a]n offender who does not accept responsibility for his conduct or minimizes what occurred is a poor prospect for rehabilitation Such acknowledgment is critical, since an offender’s ability to identify and modify the thoughts and behaviors that are proximal to his misconduct is often a prerequisite to stopping that misconduct,” Sex Offender Registration Act, Risk Assessment Guidelines and Commentary, p. 15 (citations omitted). Thus, “[i]n scoring this category, the Board or court should examine the offender’s most recent credible statements and should seek evidence of genuine acceptance of responsibility,” [emphasis added] Id. “[W]hen a sex offender has made conflicting statements regarding his responsibility for his sexual misconduct — some expressing responsibility for the misconduct (such as a guilty plea) and some minimizing or denying responsibility — a SORA court is justified in assessing 10 points for factor 12,” People v. Solomon, 202 AD3d 88 [citations omitted]. Here, although defendant admitted guilt to the crime of Possession of an Obscene Sexual Performance by a Child, his subsequent post-conviction claim that he downloaded the child pornography to his phone in order to “show his companion and daughter what they would find online and in chatrooms,” is viewed by this Court as an attempt to justify his conduct and minimize his responsibility for engaging in this serious offense.1 As to defendant’s affidavit presented during the SORA hearing, this Court finds that his statements made to the Department of Probation more likely expressed his true sentiments regarding his conduct, rather than the self-serving contents of the affidavit prepared by his attorney and signed by defendant on the day of the SORA hearing. As such, the Court gives those statements made to the Department of Probation greater weight. Therefore, the Court concludes that defendant’s “contradictory statements, considered together, do not reflect a ‘genuine acceptance of responsibility’ as required by the guidelines ” People v. Noriega, 26 AD3d 767 citing People v. Mitchell, 300 AD3d 377, see also People v. Cottom, 207 AD3d 1243; People v. Solomon, supra; People v. DePerno, 165 AD3d 1351; People v. Ramos, 129 AD3d 642; People v. Montgomery, 117 AD3d 521; People v. Fuller, 83 AD3d 1025; People v. Kyle, 64 AD3d 1177; People v. Thomas, 59 AD3d 783. Thus, the People proved risk factor twelve “ Not Accepted Responsibility” by clear and convincing evidence through the PSI (People’s Exhibit #5).2 Based on all the foregoing, defendant is assessed a total of ninety (90) points and is hereby designated a Level II “Moderate Risk to Reoffend,” with no further designation pursuant to Correction Law 168-a(7). The People’s Request for an Upward Departure In addition to the assessment of ninety (90) points, the People requested an upward departure from a presumptive Level II “Moderate Risk to Reoffend” to a Level III “High Risk to Reoffend.” In the People’s amended RAI and cover letter, they based their application for an upward departure from defendant’s statement in the PSI that “he allegedly show[ed] his companion and daughter child pornography, which amounts to an admission of the uncharged crime of Promotion of an Obscene Sexual Performance by a Child in violation of P.L. §263.10,” [emphasis added] People’s Second RAI, p. 2. However, contrary to the People’s representation in their papers, defendant stated to the Department of Probation that he downloaded the child pornography “to show” his companion and her daughter what they could find online and in chatrooms, rather than stating that he actually showed this material. Moreover, during the SORA hearing, the People and defendant stipulated that if a defense witness, Julia Toledo, “were to testify, she would testify that she is Mr. Fortis’s fiancé and she would also testify that Mr. Fortis did not show her or her daughter any child pornography,” [emphasis added] SORA Hearing Tr., p. 20, lines 3-7. As such, the People’s tacitly conceded that defendant did not state to the Department of Probation that he actually showed the child pornography to his companion and her daughter, but rather that he “intended” to do so. Nevertheless, the People argued that their application for an upward departure is appropriate because defendant’s “intention” to show the child pornography to his companion and daughter constituted the uncharged crime of Attempted Promoting an Obscene Performance by a Child under PL 203.10 (SORA Hearing Tr. p. 19, lines 4-10). In response to the People’s application, although defendant admitted to procuring child pornography, i.e. by “downloading” it, he argued that inasmuch as he never actually shared the material with anyone, including his companion and her daughter, there is no basis to conclude that he committed the crime of Promoting an Obscene Performance by a Child under PL 263.10. Legal Analysis “Once the presumptive risk level has been established at a risk level hearing, the court is permitted to depart from it if ‘special circumstances’ warrant a departure,” SORA: Risk Assessment Guidelines and Commentary, p. 4. “Under SORA, a court must follow three analytical steps to determine whether or not to order a departure from the presumptive risk level indicated by the offender’s guidelines factor score. At the first step, the court must decide whether the aggravating or mitigating circumstances alleged by a party seeking a departure are, as a matter of law, of a kind or a degree not adequately taken into account by the guidelines. At the second step, the court must decide whether the party requesting the departure has adduced sufficient evidence to meet its burden of proof in establishing that the alleged aggravating or mitigating circumstances actually exist in the case at hand If the party applying for the departure surmounts the first two steps, the court still has discretion to refuse to depart or to grant a departure,” People v. Gillotti, 23 NY3d 841 [citations omitted]. Finally, “the court must exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over-or under- assessment of the defendant’s dangerousness and risk of sexual recidivism,” Id. With respect to the uncharged crime for which the People base their application for an upward departure: Penal Law section 263.10 Promoting an Obscene Sexual Performance by a Child, sets forth, in pertinent part that: “A person is guilty of promoting an obscene sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any obscene performance which includes sexual conduct by a child less than seventeen years of age.” Penal Law section 263.00 defines the term “Promote” as: “‘Promote’ means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise or offer or agree to do the same [emphasis added]. The term “procure” with respect to child pornography cases is broadly defined and includes “the acquisition of child pornography whether for personal consumption or for distribution to others,” People v. Keyes, 75 NY2d 343 [emphasis added]. Here, contrary to both the People and defendant’s arguments, inasmuch as defendant, in the PSI and at the SORA hearing, admitted to the act of “downloading” the child pornography to his phone, he thereby acknowledged his commission of “procuring” it, i.e. “acquiring” it as defined by the law above. Thus, a sufficient legal basis was established by clear and convincing evidence that defendant committed the uncharged crime of “Promoting an Obscene Sexual Performance by a Child” and that this factor was not taken into account by the SORA guidelines. However, although a defendant’s commission of uncharged sex crimes may warrant an upward departure where “the uncharged sex crimes have not been accounted for in the Risk Assessment Instrument,” People v. DeWoody, 127 AD3d 831, significantly, the People must also prove, by clear and convincing evidence, that because of this uncharged criminal conduct, defendant’s Level II designation is an underassessment of his “dangerousness and risk of sexual recidivism,” People v. Gillotti, supra. Here, with respect to this additional prong of proof, the People did not present any evidence to the Court and thus, the prosecution ultimately failed to satisfy their required burden of proof. Additionally, the Court is cognizant that the uncharged crime of “Promoting an Obscene Sexual Performance by a Child,” as committed by defendant, in this particular case, involved the same content which established the basis for the original charged crime of “Possessing an Obscene Sexual Performance by a Child.” Further, this case did not involve a factual scenario where the uncharged crime was clearly committed separate and apart from the underlying offense such that it would constitute an “aggravating factor” warranting an upward departure (see People v. Auger, 162 AD3d 1082 (upward departure granted when defendant engaged in sexual misconduct with children other than the victim); People v. DeJesus, 117 AD3d 1017 (upward departure granted when defendant engaged in sexual conduct with children other than the victim)), Rather, here, defendant’s act of “downloading” the child pornography to his phone which resulted in his act of “possessing” the identical material on his phone was part of the same underlying criminal endeavor. As such, the Court cannot reasonably infer that the uncharged crime of “Promoting an Obscene Sexual Performance by a Child,” as committed by defendant, in this particular case, created an enhanced risk of sexual recidivism. Thus, based upon the totality of the circumstances in this particular case, the People’s application for an upward departure from a presumptive Level II (Moderate) to the highest risk level (Level III) is not warranted and is denied. Defendant’s Request for a Downward Departure Defendant claimed that the Court should grant a downward departure from a Risk Level II to a Risk Level I assessment, because (1) he is 59 years of age; (2) this is his first criminal offense; (3) he has maintained steady employment for over thirty (30) years; (4) he has “adult relationships,” including a prior marriage to an adult and his current relationship with his companion who is of similar age and (5) he only possessed 138 items of child pornography, not “thousands.” Defendant also incorporated into his application for a downward departure the argument that he previously advanced about the risk of “overassessment” with respect to scoring under risk factor seven, “Stranger Relationship.” The People, in response to defendant’s application, contended that despite defendant’s age, his past employment and lack of a criminal record, due to the quantity of child pornography that he possessed, 138 items, a downward departure is not warranted. Legal Analysis A sex offender seeking a downward departure has the initial burden of showing the existence of an appropriate mitigating factor in order to ‘establish the threshold condition for the SORA court’s exercise of its discretion’ to grant or deny the application *citations omitted* ‘ [T]he sex offender meets this threshold condition by satisfying a twofold showing: (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of re-offense or danger to the community and is of a kind, or to a degree, that is not otherwise adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence,” People v. Gillotti, 23 NY3d 841; People v. Violate, 112 AD3d 899 (see also: Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4; People v. Guzman, 110 AD3d 863; People v. Fryer, 101 AD3d 835; People v. Fernandez, 91 AD3d 737). Here, with respect to defendant’s age, 59, it cannot be said that it is a particularly advanced age such that it would minimize the risk of re-offense or dangerousness to the community (see People v. Griffin, 187 AD3d 1566; People v. Jimenez, 178 AD3d 1099; People v. Benoit, 145 AD3d 687; People v. Shelton, 126 AD3d 959). As to defendant’s claim that his lack of a criminal record should be a basis for a downward departure, this factor has already been taken into account by the SORA Guidelines under section two of the Risk Assessment Instrument, “Criminal History.” Thus, defendant has not satisfied his burden in proving by a preponderance of the evidence, that his lack of a criminal record constitutes an appropriate mitigating factor which was not otherwise taken into account by the SORA Guidelines to warrant a downward departure (see People v. Saintilus, supra). As to defendant’s prior employment with New York City Police Department School Safety Division, defendant failed to prove by a preponderance of the evidence how this would minimize his risk of re-offense or danger to the community (see People v. Pace, 188 AD3d 732; People v. Thorpe, 186 AD3d 629). Regarding defendant’s “adult relationships,” they, unfortunately, did not prevent his commission of the instant crime. Thus, defendant failed to demonstrate how this circumstance establishes a “lower likelihood of re-offense or danger to the community,” People v. Saintilus, 169 AD3d 838; see also People v. Coe, 167 AD3d 1175. With respect to defendant’s argument that a downward departure is appropriate because he did not possess “thousands” of pieces of child pornography, he failed to articulate how his possession of 138 pieces of child pornography would lower his likelihood of re-offense or danger to the community (see People v. Coe, supra). Regarding defendant’s generalized application that the Court should grant a downward departure because the imposition of risk factor seven, “Stranger Relationship,” may cause an overassessment of child pornography offenders, “no further argument was offered- and no [additional] evidence on defendant’s behalf was tendered- in support of this request,” People v. Kemp, 163 AD3d 1339. Thus, defendant has failed to satisfy his burden by articulating how the assessment of points under this risk factor overestimated his risk of recidivism. Based upon the foregoing, defendant’s application for a downward departure from the Court’s Risk Level II designation to a Risk Level I assessment is denied.This constitutes the decision and order of the Court. A copy of this order and memorandum will be forwarded to the attorney for defendant, the Bronx District Attorney’s office and the Department of Criminal Justice Services. Dated: November 15, 2022
