People v Cohen

[*1] People v Cohen 2009 NY Slip Op 50381(U) [22 Misc 3d 1131(A)] Decided on March 5, 2009 Rockland County Ct Alfieri, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 5, 2009
Rockland County Ct

The People of the State of New York,

against

David Cohen, Defendant.



3005S-2008



Thomas P. Zugibe, Esq.

District Attorney, Rockland County

By: Nabeela McLoud, ADA

James D. Licata, Esq.

Public Defender, Rockland County

By: Clare McCue Cincotta, Esq.

Victor J. Alfieri, J.

Pursuant to Section 168 of the Correction Law, the Sex Offender Registration Act (hereinafter "SORA"), this Court held a sex offender classification hearing on January 5, 2009. The hearing was held to classify the above named defendant, who had been convicted, by his plea of guilty, of Transmission of Pornography by Electronic Device (two counts); Promoting Sexual Performance by a Child (two counts); and Transmission of Material Harmful to Minors by Electronic Device (six counts) on December 18, 2007 in Florida.[FN1] At least one of those crimes would constitute a sex offense requiring registration if committed in New York. The defendant was present and was represented by counsel.

In connection with the hearing, the Court reviewed numerous documents, including, but not limited to: Transcript of the Plea Proceeding (People's Exhibit 1); Corrections Offender Information Network printout by the Florida Department of Corrections (People's Exhibit 2); New York State Division of Criminal Justice Repository Inquiry (People's Exhibit 3); the Sex Offender Registration Act Risk Assessment Instrument prepared by the Board of Examiners of Sex Offenders (People's Exhibit 4); the Case Summary (People's Exhibit 5); miscellaneous documents pertaining to defendant's sentence (People's Exhibit 6); and Information and Judgment of the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida (People's Exhibit 7). The Court also heard statements from both defendant's attorney and the prosecutor. At the conclusion of the hearing, the prosecutor requested that the defendant be classified as a Level One sex offender and the Court indicated its intention to classify defendant a Level One sex offender.

Subsequently, by letter dated January 13, 2009, the Court advised counsel that "[u]pon further review of the documents submitted to the Court, and considering the legislative purpose in enacting SORA, this Court finds that a departure to a Level II may be warranted in this matter." Accordingly, the Court re-opened the hearing so that both parties had the opportunity to address the [*2]Court regarding the specific issues raised by the Court. On January 23, 2009, a continuation of the SORA hearing was held and the Court, after a discussion on the record, adjourned the matter to permit counsel to submit post-hearing memoranda of law. Upon receipt of such memoranda submitted by both counsel, upon the evidence presented to the Court and upon the arguments of counsel, this Court makes the following findings of fact and conclusions of law:

It is well-settled that the recommendation contained in the Risk Assessment Instrument is the presumptive risk level to be applied to an offender. However, the Court is also not merely a "rubber stamp" of the Board's recommendation but is instead called upon to conduct a de novo review of the facts. See, Corrections Law §168-n(1) & (2). "A court, in the exercise of its discretion, may depart from the presumptive risk level determined by the Risk Assessment Instrument based upon the facts in the record." People v. Hines, 25 AD3d 524 (2d Dept. 2005). Such "a departure is warranted where clear and convincing evidence demonstrates the existence of an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines." People v. Barber, 29 AD3d 660 (2d Dept. 2006); see also, People v. Bowens, 55 AD3d 809 (2d Dept. 2008); People v. Marin, 48 AD3d 535 (2d Dept. 2008).

Applied here, the defendant received an aggregate score of 40 points classifying him as a presumptive level one sex offender. Specifically, the Board assessed defendant a score of 20 points under risk factor five, "Age of Victim (11 through 16)" and 20 points under risk factor seven for "relationship with victim" as the defendant and the victim were strangers. Defendant contests the 20 points assessed against him under risk factor five. Defendant claims that since the "victim" in this matter was an undercover agent whose actual age was not fourteen, the Board improperly assessed defendant 20 points in that category.[FN2] Although the Court agrees with defendant that the 20 points assessed against him for age of victim was improperly scored for the above-stated reason, the Court finds that defendant should nevertheless be assessed points under this risk factor. Defendant was convicted of Transmission of Pornography by Electronic Device and Promoting Sexual Performance by a Child based on his transmission of a video clip to the undercover agent via the internet depicting a young female child who appears to be under age 12. See, Exhibit 5 (Case Summary); Exhibit 7 (Information). Recently, the New York Court of Appeals held that children depicted in pornographic images are "victims" within the meaning of SORA. See, People v. Johnson, 47 AD3d 140 (4th Dept. 2007), aff'd, 11 NY3d 416 (2008). As such, this Court finds clear and convincing evidence to assess points in this category.[FN3] Since there is clear and convincing evidence in the record that defendant sent numerous images of child pornography over the internet, this Court finds that a total of 30 points should be assessed under this risk factor, indicating that there were three or more victims.[FN4] [*3]

Aside from the additional points this Court assessed against defendant, bringing defendant's total score to 70 points, this Court finds that aggravating factors exist not otherwise taken into account by the guidelines which warrant an upward departure thereby classifying defendant as a level two sex offender. To begin, the Risk Assessment Form does not take into account the duration of the offense. Although defendant cannot be assessed points under risk factor four (Duration of offense) since defendant did not actually engage in a sexual act with his "victim," the Court finds that the duration of the offense should not be limited only to instances where the offender engages in sexual misconduct with his victim. In the instant matter, defendant communicated with an individual whom he believed to be a 14-year-old girl for a six-month period of time. (See, Exhibits 5 and 7). He chatted with her on-line via instant messages and e-mails, sent her numerous images of child pornography and other indecent material, and cultivated a relationship with his "victim" to the point where they had sexually explicit conversations. In fact, defendant suggested "she" perform certain sexual acts upon "herself" and indicated his desire to perform certain sexual acts upon "her."

In addition, the Risk Assessment Instrument also does not take into account the fact that defendant, an adult male in his forties, posed as a 22-year-old female while communicating with his "victim." Nor does it take into account the fact that defendant admitted to being online with 500 people, both adults and juveniles, and exchanged with them numerous pictures and videos containing both erotica and explicit sexual images. Based on these aggravating factors, the Court finds that defendant should be classified as a level two sex offender.

Recognizing that the purpose of SORA is to protect the community, especially its children, from sexual offenders, the Court, in evaluating the risk factors, finds that defendant should be classified as a level two sex offender. Accordingly, the defendant shall register as a level two sex offender in accordance with laws of the State of New York.

This Decision shall constitute the Order of this Court.

ENTER

Dated: New City, New York

March, 2009

Honorable Victor J. Alfieri, Jr.

J.C.C.

TO:

Thomas P. Zugibe, Esq.

District Attorney, Rockland County

By: Nabeela McLoud, ADA [*4]

James D. Licata, Esq.

Public Defender, Rockland County

By: Clare McCue Cincotta, Esq. Footnotes

Footnote 1: Defendant's convictions arise out of an on-going communication he engaged in via the Internet with an individual he believed to be a 14-year-old girl while he pretended to be a 22-year-old female. Defendant transmitted instant messages and e-mails to this individual, who was actually an undercover agent posing as a 14-year-old girl, which included photographs and video clips that contained child pornography and other materials that were harmful to minors.

Footnote 2: Although under Florida law, specifically Fla. Stat. §847.0138 (Transmission of Material Harmful to Minors) for which defendant was convicted, it is sufficient that the defendant believed that the recipient of the communication was a minor, the Court recognizes that New York law requires proof of the victim's actual age. See, C.P.L. §235,29(1).

Footnote 3: " Clear and convincing evidence' is evidence that satisfies the factfinder that it is highly probably that what is claimed actually happened." People v. Mingo, 49 AD3d 148, 150-151 (2d Dept. 2008).

Footnote 4: Although defendant contested the contents of the Case Summary, this Court finds that the Case Summary contained reliable hearsay, which is admissible to support a sex offender adjudication (see, Correction Law §168-n[3]), and the information contained therein was corroborated by other evidence in the record.