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.
SORA provides that, in appropriate cases, a defendant in a SORA hearing may seek a downward departure from the presumptive level to a lower level and that the People may also seek an upward departure to a higher level. Such departures are at the discretion of the Court, which must explain the reasons for its exercise of its discretion or its reasons for declining to do so. Such decision is reviewable, on appeal, on the grounds of an abuse of such discretion.
Accordingly, while a Court might take such anomaly into account in considering a downward departure, the Court of Appeals in a caselaw noted that it sought no downward departure at his SORA hearing, and therefore the Court of Appeals lacked jurisdiction on appeal to consider whether a downward departure would have been appropriate. In affirming, on this issue, because no departure was sought below, the Court’s suggestion that such anomaly might be the basis for a departure is thus dicta. While dicta does not expressly bind this Court, this Court considers the case law to be well-reasoned and persuasive on the point, and will proceed to consider whether the “anomalous” award of 20 points for Factor 7 is sufficient for this Court to make a discretionary downward departure.
While not controlling, in making this determination, several policy issues are to be considered when the sex offense in question relates to Internet child pornography. The existing jurisprudence regarding sex offenses generally does not transfer easily to this specific crime. First, the primary purpose of sex offender registration is to protect the community to which the defendant will return after the completion of his sentence. When a sex offender obtains child pornography from the Internet, there is no reason for the Court to assume or not to assume or believe that he would seek out members of his own community, rather than children from another state, country, or continent. On the other hand, the presumption that offenders who obtain and possess child pornography through the Internet do not know their victims, a presumption seemingly adopted by the Court of Appeals, is not based on—or disputed by—any known empirical proof of which this Court is aware. While the Courts have experience and thus reasons to believe that those who commit physical sex crimes are likely to recidivate and commit further physical sex crimes, by reason of the Internet’s recent emergence, Courts have little if no experience as to the likelihood of re-offense for possessors of Internet child pornography or whether they are likely to commit physical sex crimes as well. While further studies may elucidate correlations or lack of correlations in this area, the parties have presented none and this Court is unaware of any.
While a defendant in a criminal matter has the right to remain silent, and in such event the finder of fact may not draw any adverse inference against the defendant, the same is not true in a civil proceeding. Although it is clear that a SORA proceeding is not a criminal proceeding, courts have often referred to it as a “hybrid” proceeding between civil and criminal.
Although in a civil proceeding a party retains his rights under the Fifth and Fourteenth Amendments of the United States Constitution and may decline to testify on the grounds of self incrimination, a trier of facts may in such event take an adverse inference as to what might have been such party’s testimony. Further, in a criminal proceeding, a defendant may elect not to testify at all; whereas in a civil proceeding the defendant cannot refuse to testify at all and may only invoke privileges as to matters that may tend to incriminate him.
The standard for reviewing evidence to establish facts to be considered for an upward departure must be clear and convincing evidence. Based on this Court’s observation of the Video Statement, this Court finds, by clear and convincing evidence, that defendant confessed to engaging in sexual intercourse with five separate underage girls in New York County substantially before the time he was arrested on the case to which he pled guilty and on which the SORA proceeding is based. The Court also finds by clear and convincing evidence that defendant’s confessions were to events which would not have been time barred at the time of such confession, and that defendant has never been indicted for such confessed acts.
Defendant’s counsel has submitted an affidavit of stating that defendant told him that his confession as to the five sexual encounters was false and was made to brag of his sexual prowess. Such affidavit is submitted to counter the statements in the Video Statement. Such hearsay is expressly permitted in a SORA hearing, and the Court has admitted such affidavit as evidence. Although admissible, the weight to be given such hearsay statement is, of course, to be determined by the Court as finder of the facts. The weakness of such evidence is obvious. By submitting this hearsay statement through counsel, defendant avoids any risk of prosecution for perjury, as well as all risk of cross-examination. While this Court has no basis to believe counsel is not reporting accurately, it has little basis to believe defendant’s statement to his counsel is true, except only for the fact that the People did not indict defendant, and the Court’s observation of the confession as to whether such confession made sense.
Accordingly, the Court hereby adjudicates Defendant a Level II sex offender.
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.