| People v Izzo |
| 2014 NY Slip Op 05679 [120 AD3d 860] |
| August 7, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vVincent S. Izzo, Appellant. |
Adam Bevelacqua, New York City, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Damian Sonsire of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the County Court of Chemung County (Hayden,J.), entered August 7, 2013, which classified defendant as a risk level II sex offenderpursuant to the Sex Offender Registration Act.
Defendant was charged in a 10-count indictment with, among other things, varioussex crimes stemming from his contact with three underage girls. After two counts of theindictment were dismissed due to a typographical error, defendant pleaded guilty tocriminal sexual act in the second degree (two counts), unlawful imprisonment in thesecond degree (two counts), sexual abuse in the third degree (two counts), endangeringthe welfare of a child and aggravated harassment in the second degree. Pursuant to theterms of the underlying plea agreement, defendant was placed on interim probation for aperiod of one year. Defendant thereafter admitted to violating the terms of his interimprobation by being discharged from a sex offender treatment program, purchasing acomputer and sending numerous emails—some of which contained explicit sexualcontent—to a 17-year-old girl. After two additional counts of the indictment weredismissed as duplicitous, defendant was sentenced to an aggregate prison term of twoyears followed by three years of postrelease supervision.
In anticipation of defendant's release from prison, the Board of Examiners of SexOffenders completed a risk assessment instrument that presumptively classifieddefendant as a risk level II sex offender (105 points) in accordance with the SexOffenders Registration Act (see [*2]CorrectionLaw art 6-C [hereinafter SORA]).[FN1] The parties agreed to forgo a hearing,and County Court decided the matter upon written submissions and classified defendantas a risk level II sex offender. Defendant now appeals, contending that he wasimproperly assessed points under risk factors 3 (number of victims) and 7 (relationshipbetween offender and victim) and asserting that a downward departure from thepresumptive risk level classification is warranted.
We affirm. Our review of the record—specifically, defendant's plea allocutionand the relevant grand jury testimony—discloses sufficient factual detail toestablish, by clear and convincing evidence (see Correction Law§ 168-n [3]), that defendant indeed touched himself in a sexual mannerwhile in contact with one of his victims via a webcam. We therefore conclude that theassessment of 30 points under risk factor 3 for three or more victims was entirelyappropriate.
We reach a similar conclusion with respect to the assessment of 20 points under riskfactor 7 (relationship between offender and victim). While it is true that the onlinecontact between defendant and his victims precludes a finding that the victims were"strangers" for purposes of SORA (cf. People v Birch, 114 AD3d 1117, 1118 [2014]), wenonetheless are persuaded that there is clear and convincing evidence to support CountyCourt's finding that defendant engaged in "grooming" behavior by cultivating arelationship with each of his victims for the purpose of satisfying his sexual desires.Accordingly, to our analysis, no point-based reduction in defendant's risk levelclassification under SORA is warranted.
As for defendant's assertion that he demonstrated his entitlement to a downwarddeparture from the presumptive risk level classification pursuant to what he hasdenominated as the "statutory rape exception" under risk factor 2 (see People v Weatherley, 41AD3d 1238, 1238-1239 [2007]), the record indeed reflects that CountyCourt—despite authoring what otherwise was a detailed written decision in thismatter—did not expressly reference defendant's request in this regard. That said,County Court did expressly reference each of the factors relied upon bydefendant—the age difference between defendant and his victims, the lack offorcible compulsion, defendant's prior criminal history and his acceptance ofresponsibility and/or participation in therapy—elsewhere in its written decisionand thoroughly discussed the conduct forming the basis for defendant's violation ofprobation. Accordingly, we are satisfied that County Court's findings provide anadequate basis for intelligent appellate review and, further, that defendant failed toestablish, by a preponderance of the evidence (see People v Gillotti, 23 [*3]NY3d 841, 859-861 [2014]),[FN2] that adownward departure from the presumptive risk level classification was warranted.Defendant's remaining contentions, to the extent not specifically addressed, have beenexamined and found to be lacking in merit.
Peters, P.J. and Clark, J., concur.
Garry, J. (dissenting). We respectfully dissent, finding merit in defendant's argumentsthat the record lacks clear and convincing evidence that he had three or more victims,relative to risk factor 3, and that he established relationships with the victims for theprimary purpose of victimizing them, relative to risk factor 7. Further, in light of thelifelong severe consequences that necessarily result from a risk level II classification, thematter should be remitted for a full and express analysis and determination relative todefendant's request for a downward departure; this weighty decision should not beupheld upon mere implication or inference.
The People must establish the risk level classification by clear and convincingevidence. Reliable hearsay, including grand jury minutes, the presentence investigationreport, a victim statement and the case summary, may be used to meet this burden (see People v Mingo, 12 NY3d563, 571-574 [2009]; People v Belile, 108 AD3d 890, 890 [2013], lvdenied 22 NY3d 853 [2013]). As relevant here, the risk assessment guidelinesprovide that a defendant should be assessed 20 points for risk factor 3 if there were twovictims, or 30 points for three or more victims (see Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary at 10 [2006]). Here, the record lacksclear and convincing proof of prohibited sexual conduct with the third victim referencedin the indictment—as to whom defendant pleaded guilty to endangering thewelfare of a child and aggravated harassment in the second degree. During the pleaallocution, defendant admitted that he had engaged in conversations of a sexual naturewith this victim, and the victim testified before the grand jury that defendant hadcontacted her by webcam video, during which time he touched himself in the area of hisgenitals, over his clothing. There was no physical sexual contact between the two at anytime. As defendant argues, the grand jury testimony included too little factual detail toconstitute clear and convincing evidence that he was masturbating. Although this mightbe inferred, it was not clearly revealed; viewed objectively, the testimony demonstratesnothing more than a brief swipe of defendant's hand in his genital region, accompaniedby innuendo. Our precedent establishes a significantly higher standard of misconduct (compare People v Clavette, 96AD3d 1178, 1179-1180 [2012], lv denied 20 NY3d 851 [2012]; People v Ramirez, 53 AD3d990, 990 [2008], lv denied 11 NY3d 710 [2008]). Therefore, we wouldreduce this assessment by 10 points.
We further find that the record supports defendant's contention that he wasimproperly [*4]assessed 20 points under risk factor 7because his conduct was not "directed at a stranger or a person with whom a relationshiphad been established or promoted for the primary purpose of victimization" (SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006]).The majority accepts County Court's finding that defendant and the victims were not"strangers," but that defendant had engaged in "grooming" behavior; we disagree. Anexample of grooming behavior provided in the guidelines is that of a scout leader whochose the position in order to gain access to his victims (see Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary at 12 [2006]). Asdefendant argues, the record does not establish this type of calculated behavior on hispart, nor was there a showing of emotional manipulation, undue influence or othercustomary indicia of grooming conduct. Instead, the record is replete withevidence—including three expert evaluations—establishing that defendantis significantly lacking in sexual and social maturity, has difficulty in understanding andinterpreting social cues, functions socially at the level of a young teenager of roughly thesame age as his victims, and would be unable to maintain appropriate relationships withyoung women of his chronological age. Without condoning defendant's conduct, as hewas fully aware that the girls were significantly younger than he and deliberately chose toignore this fact, we do not find clear and convincing evidence that he purposefully"groomed" the victims for the sole purpose of victimizing them (see People v Pelaez, 112 AD3d684, 684-685 [2013]; compare People v Tejada, 51 AD3d 472, 472 [2008];see also Rebecca Williams, Ian A. Elliot & Anthony R. Beech,Identifying Sexual Grooming Themes Used by Internet Sex Offenders, 34Deviant Behavior 2, 135-152 [2013]). Therefore, we would reduce defendant'sassessment by 20 points in this category.
As thus reduced, the 75 assessed points would place defendant squarely at the cuspof a risk level II sex offender. For this reason and those stated above, his request for adownward departure from the presumptive risk level merits a most close and carefulreview. Courts have the discretion to depart from the presumptive risk level where thereis "an aggravating or mitigating factor of a kind, or to a degree, that is otherwise notadequately taken into account by the guidelines" (Sex Offender Registration Act: RiskAssessment Guidelines and Commentary at 4 [2006]). A three-step analysis is required:first, evaluating, as a matter of law, whether such circumstances are shown, second,determining whether the proponent has met his or her burden of proof and, third,exercising discretion "by weighing the aggravating and mitigating factors to determinewhether the totality of the circumstances warrants a departure to avoid an over- orunder-assessment of the defendant's dangerousness and risk of sexual recidivism"(People v Gillotti, 23 NY3d 841, 861 [2014]). As the majority notes, it has recently been determined that defendant's burden ofproof in seeking a downward departure is preponderance of the evidence, rather than thehigher standard of clear and convincing evidence (id. at *13-14).
This record lacks any express determination by County Court of defendant'scontention that he established the existence of mitigating circumstances calling for adownward departure. Although the majority accepts an implied finding basing thedetermination primarily upon defendant's probation violation, the statute requiresfindings of fact and conclusions of law to be expressly rendered (see CorrectionLaw § 168-n [3]). In light of this requirement, it is necessary to remit forfurther review and determination of this issue (see People v Filkins, 107 AD3d 1069, 1070 [2013]; People v Burke, 68 AD3d1175, 1177 [2009]). This is particularly true upon the record presented here; asstated above, there is significant evidence that, at the time of the underlying offenses,defendant was not functioning at the level ordinarily expected for his age. This Court hasnot yet applied the "statutory rape exception" that has been well established in the [*5]Fourth Department in cases where there is no greatdisparity between the ages of the offender and the victim(s), and there are other indicia ofwilling, albeit legally prohibited, sexual conduct (see e.g. People v Goossens, 75 AD3d 1171, 1171-1172[2010]; People vWeatherley, 41 AD3d 1238, 1238-1239 [2007]). These issues bear examinationand review. In light of the record evidence, we should not lightly dismiss defendant'sassertion that the circumstances underlying his crimes fail to provide any compellingevidence of his danger of re-offense and risk to the community.[FN*] The majority accepts County Court'simplied finding that defendant's violation of the terms of his initial probation may reveala compulsive and dangerous condition; however, in evaluating the sexual conduct ofadolescents and young adults, we must exercise the greatest level of care and scrutiny,making a full effort to avoid imposing grave permanent consequences for sexualmisconduct when the risk of long-term recidivism is not clearly shown. For thesereasons, we would reverse and remit for further proceedings.
Rose, J., concurs. Ordered that the order is affirmed, without costs.
Footnote 1:In reaching thisconclusion, the Board noted that it "conservatively scored" defendant as to those riskfactors encompassing course of sexual misconduct (risk factor 4), substance abuse (riskfactor 11), acceptance of responsibility (risk factor 12) and conduct whileconfined/supervised (risk factor 13) and expressed concern regarding defendant'sviolation of his interim probation and corresponding "inability to control himself sexuallywhile supervised." To that end, the Board recommended that, if the evidence presentedby the People failed to establish that an assessment of points in the cited categories waswarranted, County Court consider an upward departure to a risk level III classification.
Footnote 2:To the extent that ourprior decisions have held that a defendant's request for a downward departure from thepresumptive risk level classification must be based upon clear and convincing evidence(see e.g. People v Mercado,117 AD3d 1367, 1368 [2014]; People v Carter, 106 AD3d 1202, 1204 [2013]), thosedecisions should not be followed in light of the Court of Appeals' recent pronouncementin Gillotti.
Footnote *:Notably, the victiminvolved in the probation violation was 17 years old, and defendant met her in a collegesetting.