This case is being heard in the Supreme Court of the State of New York in Kings County. The plaintiff of the case is the People of the State of New York. The plaintiff is represented by Shawn Mallon from the office of the district attorney of Brooklyn, Charles J. Hynes. A New York Sex Crimes Lawyer said the defendant in the case is Derrick Brown. The defendant is represented by Thomas McGivney from the Legal Aid Society in Brooklyn. The judge overseeing the case is William E. Garnett.
On the 31st of March in the year 2004, the defendant pled guilty to having a sexual performance of a child, which is a class E felony. The defendant, Derrick Brown, was promised a sentence of probation as long as he met the condition of registering as a sex offender with the Sex Offenders Registration Act.
The sentencing date in the case was the 30th of June, 2004. The court, in line with Correction Law section 168-d, started the determination hearing for the defendant to determine his registration level. The = Risk Assessment Guidelines were used by the court to analyze the risk factor of the defendant.
The first section of the Risk Assessment Guidelines addresses the current offenses of the defendant. At this point in the case the prosecution argued that there should be points assessed to the defendant based on the ages of the children that were shown in the performance that he had possessed as well as the number of children in the act and the relationship of the children with the defendant. A New York Sexsing these factors in assessing the risk of the defendant would have raised his registration level from a level one up to a level two.
The defense objected to having these risk factor points assessed based on the above merits. The defense argues that these factors are only chargeable to a person who has had actual contact with a victim and did not pertain to a defendant that had only viewed pornographic performances by a child as is the case at hand.
The prosecution argues that the children were still victims despite the lack of contact between the children and the defendant. A New York Sex Crimes Lawyer said the children were exploited in the performance and this was materially aided by the defendant.
The prosecution was given time by the court to obtain material that was persuasive for their case. A Queens Sex Crimes Lawyer said the prosecution could not come up with any theory to support their condition and therefore dropped the request to have the victim points added to the defendants risk assessment. The defendant was thus determined to have a level one assessment.
While the prosecution withdrew their request, making the issue of whether or not the depicted children were victims, the court will address the issue as this question is likely to come up in future SORA cases. The SORA laws are relatively new to interpretation and when reviewing the statute it is found that the laws have not been amended to included children or a child that is depicted in a sexual performance to be characterized as a victim. A Nassau County Sex Crimes Lawyer said that in this particular case the court would have to read an expansive definition of the term “victim.” It is felt that the statute would not be interpreted in this case, but rather has to be rewritten in order to include victims who have had no physical contact with the accused.
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