| People v Pelaez |
| 2013 NY Slip Op 08236 [112 AD3d 684] |
| December 11, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Oscar Pelaez, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Linda Breen,and Daniel Berman of counsel), for respondent.
Appeal by the defendant, as limited by his brief, from so much of an order of theSupreme Court, Kings County (DiMango, J.), dated January 25, 2012, as, after a hearing,designated him a level two sex offender pursuant to Correction Law article 6-C.
Ordered that the order is reversed insofar as appealed from, on the law, without costsor disbursements, and the defendant is designated a level one sex offender.
On this appeal from a risk level determination pursuant to the Sex OffenderRegistration Act (Correction Law art 6-C [hereinafter SORA]), the defendant challengesthe Supreme Court's assessment of 20 points under risk factor 7, which provides, insubsection (i) thereof, that those points shall be assessed if "the offender's crime. . . was directed at a stranger or a person with whom a relationship hadbeen established or promoted for the primary purpose of victimization" (Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary at 12 [2006]; seeCorrection Law § 168-d [3]). "The applicability of a particular guideline to thefacts of the sex offender's case is a legal question based upon the court's interpretation ofthe guideline" (People vWyatt, 89 AD3d 112, 117 [2011]; see People v Johnson, 11 NY3d 416, 421 [2008]). Inestablishing an offender's appropriate risk level, the People "bear the burden of provingthe facts supporting the determinations sought by clear and convincing evidence"(Correction Law § 168-d [3]; see People v Mingo, 12 NY3d 563, 571 [2009]; Peoplev Wyatt, 89 AD3d at 118).
Here, the record established that the defendant, who was 19 years old on the date ofthe subject sex offenses, was developmentally disabled, functioning at the level of a13-year-old. It was undisputed that the initial contact between the defendant and thethen-12-year-old complainant occurred inadvertently when the complainant picked upthe cell phone of her older sister and answered a call the defendant was making to thesister. Over a subsequent period of at least three weeks, the defendant and thecomplainant communicated frequently on the telephone and the Internet and, thus, theywere not strangers. Thereafter, on the first day they met in person, they engaged in thesexual conduct upon which the defendant's conviction was based. The People adducedno evidence that their relationship on the telephone and the Internet which preceded thesex offenses included any conversations of a sexual nature. Contrary to the People'scontention, the statements that the defendant made to the New York City Department ofProbation did not reveal that his primary purpose in establishing or promoting therelationship with the complainant was to [*2]victimizeher. Therefore, the People failed to meet their burden of adducing clear and convincingevidence establishing facts in support of the assessment of 20 points under subsection (i)of risk factor 7 (see People vJohnson, 93 AD3d 1323, 1324 [2012]; People v Simmonds, 74 AD3d 1505, 1506-1507 [2010]; People v Stein, 63 AD3d99, 101-102 [2009]).
The deduction of 20 points from the defendant's point total on the risk assessmentinstrument renders a score of 55, which results in a presumptive risk level of one.Accordingly, the defendant should have been designated a level one sex offender underSORA (see Correction Law § 168-d [3]).
In light of our determination, we need not reach the defendant's remainingcontention. Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ., concur.