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Level III assessment

A New York Police Department (NYPD) undercover detective posing as a participant in an Internet chat room was contacted by another chat room participant known by the alias website. The alias website engaged in several exchanges with the detective, stating 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. The alias website also electronically transmitted a video image and still image of child pornography to the detective.

The NYPD identified the alias website’s username of and obtained a warrant to search his workplace and residence. While executing the warrant, the detective observed the man using the screen name of the alias website, and he was arrested. A digital video disc (DVD) containing offending images was seized.

In his videotaped statement after arrest, the arrested man admitted his use of the alias website 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.

The arrest man was charged and indicted on two counts of Promoting a Sexual Performance by a Child Less Than 17 years of age, a Class D felony, and twenty-two counts of Possessing a Sexual Performance by a Child, all relating to the seized DVD; he was not indicted for having sexual relations with any of the five underage girls.

The arrested man pled guilty to one count, Promoting a Sexual Performance by a Child Less Than 17 Years of Age to cover all counts in the indictment, with the understanding that he would receive the maximum sentence for such charge.

The arrested man admitted that he electronically sent a still image of sexual conduct by a child less than 17 years of age to someone in an internet conversation. He stated that he could not remember which image it was or what conduct it depicted, and that he did not know that child’s age except that she was under 17. He further admitted that he electronically transmitted a still image of a nude minor girl to the detective, and a video image of an adult male having sex with a female child.

As the arrested man has been convicted of a sex offense, he is subject, under SORA, to certain reporting requirements upon his release, depending on the Court’s determination of his SORA level. Under SORA, such level is initially determined in a Sex Offender Risk Assessment made by the New York Board of Examiners of Sex Offenders. Such initial assessment estimates a defendant’s risk of re-offense, scoring certain risk factors to determine the presumptive SORA level. The Board may also recommend a departure, upward or downward, from the presumptive level. After the Board’s assessment and departure recommendation, if any, the Supreme Court must conduct a de novo review of the Board’s assessment and recommendation, and designate the appropriate SORA level for the criminal defendant.

During the arrested man’s plea, his counsel made a record that he had discussions with the People, and based on those discussions, he understood that the People would not seek or recommend a Level III assessment. The Court taking the man’s plea did not mandate such level because a SORA assessment requires a consideration of the defendant’s post-conviction behavior. The People acknowledged to such Court that the People’s advice to the defense regarding risk assessment recommendations was based on the People’s current evaluation of the arrested man, but that it was not a guaranteed part of the plea.

The Court then addressed the arrested man directly, noting that the sex crime to which he was confessing was a class D felony and stated the maximum sentence. After the Court advised him that his risk assessment was to be determined at a later date, he acknowledged that his plea was nonetheless fully voluntary.

The arrested man was scheduled for release. On July 12, 2011, the Board scored him at 45 points, presumptively establishing him as a Level I ranking. The People have asserted that the Board erred and that the man merits a score of 105 points, a presumptive Level II ranking.

While the man pled guilty to a single count of possession of child pornography, the DVD contained nine separate photographs and thirteen separate video recordings. The People contend that the man should therefore be scored 30 points under Factor 3 — Number of Victims because each child depicted in a pornographic image is a victim for risk assessment purposes. The People assert in their recommendation that there were twenty-two victims in the case — one victim for each of the twenty-two counts of possessing a sexual performance by a child. The People also seek to assess the man 20 points because he had no prior relationship with the victims and 10 additional points for his failure to accept responsibility. They also contend that the man’s Video Statement in which he admitted having sexual relations with five underage girls constitutes clear and convincing evidence of an aggravating factor not adequately accounted for in his risk factor score, requiring an upward departure to Level III.

The arrested man denied that the images presented clear and convincing evidence of three or more underage victims and that there was no basis in the record to prove by clear and convincing evidence that the minors in question were strangers to him. Further, the criminal defense argues that while in treatment in prison, the man initially stated in treatment that he only used the child pornography for financial gain and his social worker at the Sex Offender Treatment program says that such concealment and denial is common to at least 90% of all such clients. The social worker noted that the arrested man made real progress and opened up about his attractions to children, and he was able to successfully graduate from the program after six months. The arrested man also highlights the fact that he is a 53-year-old man who has been through treatment and counseling; he claims post-release studies of child pornography possessors and his age are strong indicators that he is at low risk for recidivism.

Finally, the arrested man has told his counsel that he did not actually engage in sexual acts with the minors as he stated in his video statement, but was instead bragging, trying to be macho and that what he said was both incorrect and stupid. His counsel argues that the prosecution’s inability to find or develop and corroborating evidence to the man’s confession supports his contention that the claims were in fact mere braggadocio, and thus there is no clear and convincing evidence of his dalliance with underage girls and requests that such issue be removed from consideration in this proceeding. Further, the arrested man asks the Court to make a downward departure and to adjudicate him as a Level I sex crimes offender.

A SORA level determination is a two-step process. 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 the arrested man with 45 points, a presumptive Level I risk. The People assert that the Board erred in failing to assess him 30 points for Factor 3, Number of Victims (Factor 3), 20 points for Relationship with Victims and (Factor 7), 10 points for Acceptance of Responsibility (Factor 12). He accepted the 45 points scored by the Board, but challenged the People’s suggested additional points. As there was no challenge by him to the 45 points scored by the Board, the Court has limited its review to the additional 60 points which the People contend should be assessed and which he disputes.

Although the indictment charged him with separate counts of possession of stolen property still and video images of sexual performances, he 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. He 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, he 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.

To resolve the issue, the Court, in the presence of the parties, reviewed the DVD in camera on a computer supplied by the People, observing each still image and sufficient portions of each video image to enable the Court to consider whether the girls depicted were real persons or not, whether the girls were underage, the number of different girls depicted, and whether the images depicted prohibited activity. The Court conducted such in camera review, recognizing that the display of pornographic images of underage girls in a public court setting would itself victimize them further, and that copying the DVD to another computer such as the Court’s own computer would increase the risk of dissemination through unauthorized hacking. The parties consented to this process. There was no drug possession charged.

After such viewing, the Court finds as facts, established by clear and convincing evidence, that all 22 images were of real girls; 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; in not all of the images could the girl clearly be determined to be underage; and adopting the Supreme Court endorsed standard for pornography, that a Court can know it when it sees it, that the People established that the DVD depicted at least three, real underage girls, engaging in prohibited activities. Thus, the Court will assess the arrested man 30 points on Number of Victims, Factor 3, as urged by the People. In conclusion, the Court modified the Board’s findings to score him with 95 points, making him a presumptive Level II sex offender.

The internet made pornography an easy access. It is the duty of the parents to make sure that minors are safe from people who want to take advantage of their vulnerability. In case you want to send someone in jail for pornography, you can visit Stephen Bilkis and Associates and ask for their NYC Sex Crime Lawyer or the NY Criminal Attorney.

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