Criminal Courts Building Suite 302 Riverhead, New York Garden City, New York 11530

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1 COUNTY COURT, SUFFOLK COUNTY STATE OF NEW YORK Present: HON. BARBARA KAHN, J.C.C X THE PEOPLE OF THE STATE OF NEW YORK v. THOMAS JONES Defendant X Court Case No /2009 Decision After Hearing HONORABLE THOMAS J. SPOTA MICHAEL ANNIBALE, ESQ. District Attorney of Suffolk County Attorney for Defendant Kathleen Kearon, Esq., of counsel 226 Seventh Street Criminal Courts Building Suite 302 Riverhead, New York Garden City, New York SEX OFFENDER REGISTRY MR. THOMAS JONES N.Y.S. Division of Criminal Justice Services 7 Frank Street 4 Tower Place Middle Island, New York Albany, New York Defendant appears before this Court having pled guilty in the United States District Court for the Northern District of Texas to the crime of Enticement of A Minor To Engage In Sexual Activity in violation of 18 U.S.C. 2422[b] in satisfaction of a six count indictment also charging defendant with, among other crimes, Distribution of Child Pornography in violation of 18 U.S.C. 2252A(a)(1) and Possession of Child Pornography in violation of 18 U.S.C. 2252A(a)(5)(B). The defendant was sentenced to a period of imprisonment of sixty months to be followed by five years of supervised release and will be monitored by a Federal Probation Officer for the duration of that five year term. Pursuant to Correction Law 168-n, a Risk Level Assessment hearing was held before this Court on May 15, 2009 to determine the defendant s level of community notification. The Court has considered the Risk Assessment Instrument and Case Summary prepared by the Board of Examiners of Sex Offenders (the Board ), a packet of materials which includes the defendant s federal pre-sentence investigation report submitted by the defendant s Federal Probation Officer to the Board, the arguments of both the People and defense counsel, a memorandum of law submitted by defense counsel and the Court s observations of the defendant during the hearing. A short recitation of the operable facts leading to the defendant s conviction, as culled from the record before the Court, is necessary. On July 26, 2004 the Dallas, Texas division of the Federal Bureau of Investigations (F.B.I.) learned that the defendant, using the screen name/ address kels4eval@yahoo.com, was using the internet to solicit young adolescent girls for sexual encounters. The F.B.I. later learned that the screen name was registered to the

2 defendant. An undercover agent accessed the internet using the screen name maddies2cute, a nom de plume for a twelve-year-old girl. For approximately two weeks the defendant engaged in sexually explicit on-line conversations with Maddie, at times sending her photographs depicting pornography and exposing his penis to her through the use of a web-cam. On August 5, 2004 the defendant arranged to meet Maddie and her thirteen-year-old friend at a Dallas hotel to engage in sexual conduct. The next day the defendant drove to the hotel, but left after he was unable to get a room. He was arrested shortly thereafter. With respect to the defendant classification level, the Court initially refers to the Risk Assessment Instrument. That document has assigned the defendant a numerical score of eighty which would place the defendant at Risk Level Two (moderate risk to reoffend). The People, however, seek an upward departure from that numerical score and seek to have the defendant designated a Level Three offender (high risk to reoffend). The People base their application, in part, on their belief that the defendant intended to engage in a sexual relationship with two prepubescent girls and took multiple steps to effectuate the consummation of that relationship. The People also rely on their contention that the defendant sent multiple images of child pornography to Maddie. Considered cumulatively, the People maintain that defendant represents a high risk to reoffend and should be designated a Level Three sex offender. The defendant argues that he was inappropriately scored points under several risk factors and the subtraction of those points would result in a proper classification of Level One. Failing that, defendant argues that a downward departure is appropriate based on, among other things, the heightened conditions of probation supervision imposed by the federal government and the fact that defendant faces thirty years incarceration should he violate those conditions. Defendant also contends that the fact that he did not have physical contact with his victims, the fact that he now lives close to and has the support of his family and the fact that the federal government allowed for the adjustment of his offense level based on his acceptance of responsibility all lend to the conclusion that defendant should be awarded downward departure. Initially, at a hearing where the Board, People or defendant disagree as to the offender s adjudication, the People bear the burden of proving the facts supporting the determination sought by clear and convincing evidence (see People v. Hernandez, 7 Misc.3d 151 [2005]). Such a hearing is analogous to a sentencing determination in that the court making the sex offender risk assessment determination has latitude in the type and nature of evidence it may consider and is not bound by the formal rules of evidence (People v. Victor R., 186 Misc.2d 28 [2000]). In making a determination the court shall consider and review any victim s statement and any other relevant materials and evidence submitted by the sex offender and the People (see Id.). An upward or downward departure from the presumptive risk level is warranted when, after consideration of the indicated factors... there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the risk assessment guidelines (see Matter of O Brien v. State of New York Division of Probation & Correctional Services, 263 AD2d 804 [1999]). Turning first to the Risk Assessment Instrument, the Court is of the opinion that the defendant was, in fact, improperly awarded points under two risk factors. First, with respect to risk factor three (number of victims), the defendant should not have been scored twenty points. The People maintain that Maddie and her more fictitious thirteen-year-old friend, represent victims as that term is contemplated by the Sex Offender Registration Act (SORA). The Risk

3 Assessment Guidelines and Commentary [2006], dictate however, that in scoring under this category the focus should be on the number of people whom the offender victimized in the case (or cases) that ultimately resulted in the instant conviction. Clear and convincing evidence of sexual conduct by the actor against victims may be taken into consideration. While the Court is cognizant of the defendant s apparent belief that he was communicating with a twelve-year-old girl, and arranged to meet both her and her thirteen-yearold friend, there is no support in the Guidelines for the proposition that the term victim should encompass virtual identities, where, as here, the person with whom the defendant was communicating was an F.B.I. agent. Stated otherwise, the intent of the offender plays little or no part in making another actor a victim. Moreover, there is no evidence in the record before the Court that the defendant engaged in sexual conduct as that term is defined in Article 130 of the Penal Law. Indeed, sexual conduct between the defendant and his victims would be impossible. Finally, case law from parallel jurisdictions supports the proposition that detectives posing as underage children on the internet do not constitute victims as that term is contemplated by SORA (see People v. Cohen, 22 Misc.3d 1131A [County Ct, Rockland County, March 5, 2009]; People v. Skya, 2006 NY Misc. LEXIS 4005 [County Ct, Nassau County, March 7, 2006]). Next, the Board has awarded the defendant twenty points under risk factor five (age of victim) under the theory that the defendant s victims were between the ages of eleven and sixteen. It appears from the Case Summary that the Board scored the defendant points under this category under the theory that Maddie and her thirteen-year-old friend constituted victims for SORA purposes. While the Court has disposed of that argument in the preceding paragraph, that does not end the discussion. As the defendant s federal pre-sentence investigation report (Court Exhibit #1) indicates, the defendant sent Maddie several images of what is described as child pornography. It is now beyond cavil that the children depicted in images of child pornography represent victims as that term is contemplated by SORA and the Guidelines (see People v. Johnson, 11 NY3d 416 [2008]; People v. Perahia, 57 AD3d 865 [2008]; People v. Worley, 57 AD3d 753 [2008]). However, while the rules of evidence are relaxed for risk assessment hearings, this Court must still only consider hearsay which is deemed reliable in measuring whether the People have sustained their burden of proof by clear and convincing evidence (see People v. Bove, 52 AD3d 1124 [2008]). That being said, without a visual examination of the images transmitted by the defendant, the Court cannot state with any conviction that the images represented child pornography. It should be noted here that, as stated by defense counsel, the age of minority at the federal level is less than eighteen-years-old. In New York, punishment is meted out for transmitting images of anyone less than sixteen or seventeen depending on the specific statutory infraction (see Penal Law : Possessing A Sexual Performance By A Child [prohibiting the possession of any performance which includes sexual conduct by a child less than sixteen years of age](emphasis supplied)); compare Penal Law : Promoting A Sexual Performance By A Child [prohibiting the production of any performance which includes sexual conduct by a child less than seventeen years of age](emphasis supplied)]. Without an in camera inspection or a determination by the United States District Court that the images depicted children less than sixteen years old, the Court is constrained to subtract the twenty points awarded under this risk factor from the defendant s overall score.

4 With respect to the remainder of the points scored on the Risk Assessment Instrument, the Court finds that those determinations were properly made. While defendant contests the fifteen points awarded under risk factor eleven (drug or alcohol abuse), the Court need only refer to the Case Summary and pre-sentence investigation report. Both documents relate that the defendant admitted committing the instant offense while abusing alcohol, marijuana and cocaine. Furthermore the defendant has two prior criminal convictions, one for possession of marijuana and the other for driving while intoxicated. Notwithstanding the defendant s most recent abstinence, considered cumulatively the above represents clear and convincing evidence of the defendant s history of alcohol and drug abuse. Accordingly, the defendant was properly scored fifteen points under this risk factor. Bearing in mind these determinations the Court is of the opinion that the defendant s Risk Assessment Instrument should properly reflect a numerical score of forty, which would normally result in a Level One designation. However, the issue with respect to the People s application for an upward departure merits further discussion and consideration. In seeking an upward departure the People direct the Court s attention to the sexually explicit nature of the on-line chats the defendant engaged in with a person he believed to be a twelve-year-old girl. Additionally, the People argue that a further aggravating factor is the defendant s transmission of pornography to Maddie, images which apparently included adult pornography and at least one instance of the defendant exposing his penis via web-cam. Furthermore, the People maintain that the defendant was the catalyst for arranging the rendevous at a hotel with Maddie and her fictitious thirteen-year-old friend. They argue the defendant established the date, time and location of the meeting which, they contend, the defendant intended to result in sexual contact with two prepubescent girls. Finally, the People point to the fact that defendant went so far as to attempt to secure a room in the hotel before ultimately failing that and subsequently leaving the hotel. When considered as a whole, the People maintain, each of the above mentioned factors constitute aggravating evidence not otherwise taken into account on the Risk Assessment Instrument. The stated purpose for the development of the Sex Offender Guidelines is the Board, with the assistance of a group of experts with experience in dealing with sex offenders, would bring academic knowledge and practical acumen to the difficult task of predicting whether a person convicted of a sex crime is likely to reoffend (see Sex Offender Registration Act, The Risk Assessment Guidelines and Commentary, [2006], page 1). The responsibility for the final assessment of factor values and the overall determination of a defendant s sex offender level lies with the court, however, and while recommendations of factor assessments by the Board may be useful, a court is not constrained by them (People v. Jusino, 11 Misc.3d 470 [Sup Ct., New York County, 2005]; citing People v. Dorato, 291 AD2d 580 [2002]). In making this determination with respect to the defendant s likelihood to reoffend, the Court has considered the recommendations of the Board to the extent indicated, as well as the other evidence presented at the hearing. Of particular concern to the Court is the defendant s seeming intent to consummate a sexual relationship with the on-line persona Maddie, who the defendant believed to be a twelve-year-old girl and her thirteen-year-old friend. This was something more than internet role-play or fantasy on-line chatting. There existed, in no small way, the real possibility that had the defendant been successful in getting a room at the hotel, and

5 Maddie and her friend had been real, the defendant would have engaged in sexual intercourse with two prepubescent girls. There is no other viable explanation for the defendant s actions. It is noteworthy that had those events described above actually taken place, and applying the additional factors to a Risk Assessment Instrument, the defendant would have been properly scored 105 points resulting in a presumptive Level Two designation (Sexual contact with victim: 25pts., Number of victims: 20pts., Age of victim: 20pts., Relationship with victim: 20pts., Number and nature of prior crimes: 5pts., Drug or alcohol abuse: 15pts.). Finally, the Court credits the additional arguments advanced by the People in furtherance of their application for an upward departure. The sexually explicit nature of the on-line communications, the transmission of pornography and the exposure of the defendant s penis to a person he believed to be a twelve-year-old girl are all aggravating factors not otherwise adequately taken into account in the Risk Assessment Instrument before the Court. Accordingly, the Court finds that an upward departure from the Risk Assessment Instrument designation, as modified by the Court, is appropriate. Based on the sum of the foregoing the Court finds that the defendant represents a moderate risk to reoffend and he is hereby designated a Level Two sex offender. This shall constitute the decision and order of the Court. Dated: May 26, 2009 BARBARA KAHN, J.C.C.