In January 2007, a Police undercover detective posing as a participant in an Internet chat room was contacted by another chat room participant with an alias. The defendant engaged in several exchanges with the detective, stating, inter alia, that he wanted to engage in sexual acts with underage children, that he possessed child pornography both at home and at his workplace, and that he shared such pornography through Web sites. He also electronically transmitted a video image and still image of child pornography to the detective.
A New York Sex crimes lawyer said that the Police district identified defendant and obtained a warrant to search his workplace and residence. Thereafter, while executing the warrant, the detective observed defendant using a scree name, and he was arrested. A DVD containing offending images was seized.
In his videotaped statement after arrest, defendant admitted his use of a screen name to view pornographic images of underage girls. Approximately two and a half hours into his interview, he also confessed to having sexual relations with five underage girls, but added that he only saw each of such girls once because he did not perform well and was embarrassed.
Defendant was charged and indicted on two counts of Promoting a Sexual Performance by a Child Less Than 17 years of age, P.L. § 263.15, a Class D felony, and twenty-two counts of PL § 263.16, Possessing a Sexual Performance by a Child, all relating to the seized DVD; he was not indicted for having sex relations with any of the five underage girls.
The first step requires the Court to hold a de novo hearing on the Board's scoring of the SORA risk assessment factors to establish a presumptive risk level. The second step is to consider whether a departure, either upward or downward, from the presumptive risk level is warranted.
Here, the Board scored defendant with 45 points, a presumptive Level I risk. The People assert that the Board erred in failing to assess defendant 30 points for Factor 3, Number of Victims, 20 points for Relationship with Victims and, 10 points for Acceptance of Responsibility. He accepted the 45 points scored by the Board, but challenged the People's suggested additional points. As there was no challenge by defendant to the 45 points scored by the Board, this Court has limited its review to the additional 60 points which the People contend should be assessed and which defendant disputes.
Although the indictment charged defendant with separate counts of possession of still and video images of sexual performances, defendant pled to a single count of the indictment. He admitted, however, that he possessed the 22 separate images and the parties concur that there are 22 separate images on the DVD.
The standard of proof to be applied in making findings in a SORA hearing is that the People must establish facts by clear and convincing evidence. Hearsay evidence is permitted as well as evidence otherwise admissible in a criminal proceeding. Defendant has conceded based on his plea and allocution, that the People established beyond a reasonable doubt that he possessed the images on the DVD and that at least one of these images met the standard for his criminal conviction. However, defendant challenged whether such was sufficient to establish whether there were three or more victims within the meaning of SORA's scoring standard. While a “victim” for SORA purposes includes a child whose pornographic image possessed by a defendant, the allocution to the possession of twenty-two images does not necessarily prove the number of different individuals depicted, or that each different individual was under age, or that the images were indeed sexual performances under the applicable legal standard. To support their contention, the People submitted the DVD to the Court for inspection.
After viewing the DVD, the Court finds as facts, established by clear and convincing evidence, that 1) all 22 images were of real girls; 2) some of the different images depicted the same girls and, in some others, the identity of the girl could not be clearly and convincingly determined not to be the same as a girl depicted in another image; 3) in not all of the images could the girl clearly and convincingly be determined to be underage; and 4) adopting the United States Supreme Court endorsed standard for pornography, that a Court can “know it when [it] see[s] it,” that the People established that the DVD depicted at least three, real, different underage girls, engaging in prohibited activities. Thus, the Court will assess defendant 30 points on Number of Victims, Factor 3, as urged by the People.
The People assert that the Board erred in not assessing defendant 20 points under Factor 7, Relationship with Victims. Defendant argues that the record lacks clear and convincing evidence to support such assessment.
In conclusion, this Court will modify the Board's findings to score defendant with 95 points, making him a presumptive Level II sex offender.
To Be Cont......
Child pornography is a form of abuse which will surely ruin the future of a child. Here in Stephen Bilkis and Associates, we are against on such acts. Our New York Child Pornography attorneys will help these innocent children to file a case against the person who initiated and influenced them to do it. We also have New York Rape attorneys who will defend the helpless victims to have their right vindicated.