[*1]Decided on December 8, 2011

The People of the Stateof New York, Plaintiff, against H. Yen, Defendant.

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APPEARANCES OF COUNSEL

People v. H. Yen

Sex Offender Registration - Risk Level Hearing

Federal Case

For the People:

Connie Solimeo, Esq.

Kings County District Attorney's Office

350 Jay Street

Brooklyn, NY 11201-2904

(718) 250-2001

Mark Dwyer, J.

Defendant H. Yen has been convicted in federal court of Distributionand Receipt of Materials that Contained Child Pornography. See 18 USC 2522 A (a) (2) (B).This court must "classify" defendant under New York's sex offender registration laws. For thereasons that follow, defendant will be classified as a "level one" offender.

I

Defendant pled guilty in the United States District Court for the Southern District of NewYork to possessing and "sharing" pornographic computer images of young children. The detailsof his personal history are not in dispute. In a nutshell, defendant is a 40 year old man whograduated from the University of California at Berkeley but who has since not made his mark. Heis single, subject to depression, and living in a shelter or "halfway" house, and because of hisconviction he is under intensive supervision. That supervision includes psychiatric treatment.[*2]

Under New York's Sex Offender Registration Act("SORA"), defendant must register as a sex offender. The extent of the obligations to be imposedon a defendant would vary, depending on whether he is classified at level one, two, or three; levelone would involve the fewest obligations. Such classifications are determined by how manypoints a defendant is assessed under standards related to the danger that he will re-offend.

Here the People's initial SORA evaluation assessed defendant as a presumptive level oneoffender, but the People asked for an upward departure to level two. Cf. People

v. Wyatt, 931 NYS2d 85 (2d Dep't 2011). Under the SORA classificationscheme, the People charged defendant with 45 points. Thirty were for the "ten or less" age of the

"victims"—the children depicted in defendant's pornography. Another 15 wereassessed for what the People opined was defendant's history of drug or alcohol abuse. That45-point assessment, or any that involved 70 or fewer points, would have made defendant a"presumptive" level one offender. But the People asked that defendant be classified as a level twooffender based on what they viewed as a substantial prospect that defendant would re-offend,beyond what was predicted by his total of 45 points.

The People subsequently filed a statement amending their position. Based

on case law developments, the People argued that defendant's point total should be95, which would make him a presumptive level two offender. The People would add an extra 30points in that defendant had more than three victims, and an extra 20 points because the victimswere "strangers" to defendant. The People did not ask for an upward departure from a level twoclassification.

II

The People are correct in their view that defendant is presumptively a level two offender.Recent and controlling case law establishes that a defendant who has possessed

pornographic images of many children must be considered to have more than threevictims, and must be considered to have victimized "strangers." See People v. Johnson, 11 NY3d 416(2008); People v. Bretan, 84 AD3d906 (2d Dep't 2011); People v. Blackman, 78 AD3d 803 (2d Dep't 2010).Any defendant in this defendant's position therefore is chargeable with the 50 points in these twocategories, as well as with 30 points for the young age of the victims.

Defendant contests the view that he "abused" alcohol and drugs. But this court finds thatdefendant's admitted long term use of marijuana by itself requires the assessment of 15 points onthis front. Those points, added to 30 points for the number of the victims, 20 points for the"stranger" status of the victims, and 30 points for the "ten or less" age of the victims, givedefendant a score of 95. That places him squarely within the level two category, which isapplicable to defendants who score from 75 to 105 points.

Defendant, however, asks for a downward departure to level one status. In People v.Wyatt, decided last month, the Second Department addressed how courts should deciderequests [*3]for upward and downward departures frompresumptive classification levels. As pertinent here, a defendant's request should be granted if thedefendant establishes, by a preponderance of the evidence, the existence of a "factor" which"tends to establish a lower likelihood of re-offense or danger to the community" and which is"not adequately taken into account by the Guidelines...." People v.Wyatt at 94. Asexplained below, this court agrees that defendant has demonstrated his entitlement to adownward departure to a level one classification.

III

Child pornography is repellent. The customers who purchase and view the pornography areas important to the industry as those who create the pornography. For that reason, those whopossess child pornography are as much subject to punishment as those who produce it. Suchpunishment does not offend the First Amendment, whether or not the pornography is considered"obscene." See New York v. Ferber, 458 US 747 (1982)^[FN1].

But the repugnant nature of the child pornography industry, and the damage done bythose whose payments encourage child abuse, are not the issue here. The ultimate issue for thecourt at this post-conviction stage of defendant's federal litigation concerns how dangerous he isto his neighbors and whether the presumptive classification of defendant as a level two offendermirrors his dangerousness.

The defendants in cases like People v. Bretan and People v. Blackman poseda threat to their neighbors. Bretan had offered to pay an undercover officer to make a video of a10 year old being sexually abused, he lived within sight of a children's playground, and childrenlived in his building. Blackman had arranged via computer to meet and have sex with a maleundercover officer who Blackman believed to be 15. Understandably, in neither case did theAppellate Division believe the defendant deserved a downward departure from his presumptiveSORA rating.

But this defendant's case is very different. Dr. Richard Kreuger has opined that defendant is a"remote risk" ever to be involved in a physical sex crime, and that his current treatment showsthat there is an "excellent" chance that defendant will not re-offend even by again possessingchild pornography. More particularly, the doctor opines that defendant is not a danger to children,and could be around them without supervision. In other words, the doctor believes thatdefendant's prior viewing habits are not related to any tendency personally to harm others.Defendant's current treating physician, Dr. Douglas Martinez, agrees. He has opined "within areasonable degree of clinical certainty that [defendant] is in the lowest range of risk for anyre-offense. He does not pose a danger to others."

Given the facts in Bretan and in Blackman, and the language in the sexoffender classification rules, the decisions in those cases upholding those defendants'classifications make [*4]perfect sense. But this defendant, whomust be assessed as an individual, is in a different position. As shown by at least a preponderanceof the evidence, he is no danger to children. As to him, the number of victims and the fact thatthe pictures he possessed were of "strangers" has no bearing on whether he is a threat tore-offend. This court therefore concludes that a downward departure to level one is appropriate.

It remains only for this court to offer dictum. In this judge's view, the holdings

in Johnson and its progeny were driven by the language of the sex offenderpoint categories, and were correct. As noted, also sensible were the decisions as to the defendantsin Bretan and Blackman, given the underlying facts. But where possessors andviewers of child pornography are concerned, those egregious circumstances do not always apply.Not everyone who has viewed child pornography is a danger to his neighbors. Some are; someare not.

The language of the sex offender classification rules assigns points to possessors of childpornography for the "number" of victims, and the "stranger" classification of victims, in a waythat was intended by the authors of the guidelines to apply to physical contact, and not todefendants who possessed and shared child pornography. The resultant language will typicallyadd 50 points to the sex offender totals of those who possess child pornography, whether or notthey are as dangerous as physical offenders. As a result, many possessors of child pornographywho are not serious threats to the community will presumptively be classified as level twooffenders. Since this court does not think that result would be consistent with the intent of theauthors of the SORA guidelines it anticipates that many SORA applications made as to suchdefendants should result in downward departures to level one. The Court of Appeals seemssympathetic to this conclusion. In Johnson the Court interposed dictum of its own, notingthat adding points in child pornography cases because the child victims and the defendants are"strangers" might generally produce "a seemingly anomalous result" not intended by the authorsof the SORA guidelines. Johnson at 933.

Accordingly, defendant will be granted a downward departure and classified at SORA levelone.

SO ORDERED

E N T E R:

Date: December 8, 2011MARK DWYER

Justice of the Supreme Court

Footnote 1: In earlier life, this judge was aminor participant in the Ferber litigation—and is proud of that circumstance.