| People v Johnson |
| 2012 NY Slip Op 02218 [93 AD3d 1323] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MauriceJohnson, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from an order of the Supreme Court, Erie County (John L. Michalski, A.J.), enteredJanuary 14, 2011. The order determined that defendant is a level two risk pursuant to the SexOffender Registration Act.
It is hereby ordered that the order so appealed from is modified on the law by determiningthat defendant is a level one risk pursuant to the Sex Offender Registration Act and as modifiedthe order is affirmed without costs.
Memorandum: On appeal from an order determining that he is a level two risk pursuant tothe Sex Offender Registration Act (Correction Law § 168 et seq.), defendantcontends that Supreme Court erred in assessing 20 points against him under risk factor 7, for hisrelationship with the victim. We agree. Points may be assessed under risk factor 7 in the eventthat the underlying crime "was directed at a stranger," the crime was directed at a person withwhom the offender "established or promoted [a relationship] for the primary purpose ofvictimization," or the crime "arose in the context of a professional or avocational relationshipbetween the offender and the victim and was an abuse of such relationship" (Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 12 [2006]; see People v Stein, 63 AD3d 99,101 [2009]).
Here, the court determined that the victim was a stranger to defendant. That was error.Pursuant to the presentence report, defendant "was acquainted with [the victim] as aconsequence of going to church with [the victim's] mother and aunt" (emphasis added), and theRisk Assessment Guidelines and Commentary provide that "the term 'stranger' includes anyonewho is not an actual acquaintance of the victim" (Risk Assessment Guidelines and Commentary,at 12; see People v Helmer, 65AD3d 68, 70 [2009]). The People nevertheless contend that the court properly assessedpoints against defendant under risk factor 7 because they established by clear and convincingevidence that defendant established or promoted the relationship with the victim for the primarypurpose of victimizing him. We reject that contention. The only evidence considered by the courtwas the presentence report and risk assessment instrument (RAI), and there is nothing in thosedocuments indicating that defendant's purpose in meeting or developing a relationship with thevictim was to subject him to sexual contact or otherwise abuse him. Further, because it isundisputed that defendant did not have a professional or avocational [*2]relationship with the victim, we conclude that there was no basis forthe court to assess points against defendant under risk factor 7.
As a result of the error of the court, defendant's score on the RAI must be reduced by 20points, rendering him a presumptive level one risk. The People did not seek an upward departurebased on defendant's HIV status or his surreptitious videotaping of the sexual acts that heengaged in with the victim. We therefore modify the order accordingly.
All concur except Sconiers and Martoche, JJ., who dissent and vote to affirm in thefollowing memorandum.
Sconiers and Martoche, JJ. (dissenting). We respectfully dissent and would affirm the orderdetermining that defendant is a level two risk pursuant to the Sex Offender Registration Act(Correction Law § 168 et seq.). We cannot agree with the majority that SupremeCourt erred in assessing 20 points against defendant under the risk factor for his relationship withthe victim. In our view, the People established by clear and convincing evidence that defendantestablished or promoted the relationship with the victim for the primary purpose of victimization(see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 12[2006]). The relationship between defendant and the victim was not familial in nature but waspredatory, based upon the age of the victim, the age difference between defendant and the victimand the circumstances under which they met. Thus, we conclude that the facts, as presented to thecourt, established that it was " 'highly probable' " that defendant befriended the victim for thepurpose of victimizing him through the sexual relationship (People v Dominie, 42 AD3d 589, 590 [2007]).Present—Centra, J.P., Fahey, Lindley, Sconiers and Martoche, JJ.