People v Kent

[*1] People v Kent 2012 NY Slip Op 51389(U) Decided on July 19, 2012 County Court, Dutchess County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 19, 2012
County Court, Dutchess County

The People of the State of New York, Plaintiff,

against

James Kent, Defendant.



76-2008



Marjorie J. Smith, Esq.

Office of the District Attorney

of Dutchess County

Nathan Z. Dershowitz, Esq.

Victor J. Alfieri Jr., 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 June 29, 2012. The hearing was held to classify the above named defendant who stands convicted of one count of Promoting a Sexual Performance by a Child (P.L. §263.15) and 133 counts of Possessing a Sexual Performance by a Child (P.L. §263.16).[FN1] The defendant was present and was represented by counsel.

In connection with the hearing, the Court reviewed numerous documents, including, but not limited to: State of New York Board of Examiners of Sex Offenders ("the Board") Memo dated May 9, 2012, Risk Assessment Instrument and Case Summary (Court Exhibit 1); Transcript of the Plea Proceeding (People's Exhibit 1); Letter addressed to this Court from defendant's attorney dated June 21,

2012 (People's Exhibit 1); Packet of papers entitled "Justice For Jim Kent: Jim's Writing consisting of various dates from January 24, 2010 to February 2, 2012 (People's Exhibit 2); Letter addressed to Victor Eiger, Esq., Dershowitz, Elger & Adelson, PC, [*2]defendant's attorney from Marjorie J. Smith, Bureau Chief, Special Victims Bureau of the District Attorney of Dutchess County dated June 13, 2012 (People's Exhibit 3).[FN2] 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 Three sex offender. The RAI sets forth the Board's assessment of a Level one classification for the defendant.

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 60 points classifying him as a presumptive level one sex offender. Specifically, the Board assessed defendant a score of 30 points under risk factor five, "Age of Victim (10 or less, 63 or more)," 15 points under risk factor twelve, "Acceptance of Responsibility (Not accepted responsibility/refused or expelled from treatment)," and 15 points under risk factor 14, "Supervision (Release without supervision)." No other points were assessed against defendant under any other risk factor.

The People dispute the Board's score and claim that the total number of points that should have been assessed against defendant is at least 110, thereby classifying defendant as a level three sex offender. The People claim that the Board should have assessed defendant additional points as follows: 30 points under risk factor 3, "Number of victims (Three or more)," and 20 points under risk factor 7, "Relationship with victims (Stranger or established for purpose of victimizing or professional relationship)." The [*3]People also claim that an additional 10 points may be appropriate under risk factor 15, "Living/Employment situation (Living or employment inappropriate)." Defendant argues that he should be classified as a level one sex offender.

Once the scoring, i.e., the presumptive level to be applied, is disputed, the People bear the burden of establishing the risk level by clear and convincing evidence. See, Correction Law §168-n. Here, based on the People's evidence, the Court finds that the People have established, by clear and convincing evidence,[FN3] that defendant should be assessed an additional 50 points, bringing his total score to 110 points.

With respect to risk factor 3, "Number of victims," the People established by clear and convincing evidence that defendant should be assessed 30 points in this category. The defendant himself acknowledged "that the language of the RAI would appear to require the assessment of an additional 30 points on the basis of three or more victims' because Kent's offenses of conviction involved images of more than three children." See, People's Exhibit 1, p. 3. It is well-settled 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). Moreover, the Appellate Division, Second Department, has affirmed the trial courts' assessment of points under this risk factor, as well as under risk factor 7, "Relationship with victim," in similar cases. See, e.g., People v. Bretan, 84 AD3d 906 (2d Dept. 2011); People v. Perahia, 57 AD3d 865 (2d Dept. 2008).

Notwithstanding this Court's assessment of an additional 50 points, bringing defendant's total score to 110 points and a level three classification, this Court is within its discretion to grant defendant a downward departure if defendant establishes a lower likelihood of re-offense or danger to the community, which is not adequately taken into account by the Guidelines. See, People v. Wyatt, 89 AD3d 112 (2d Dept. 2011). At the hearing, defendant made numerous arguments in this regard. Defendant argued, inter alia, that the guidelines should not be strictly adhered to because to do so would produce anomalous results; that defendant should not be punished for maintaining his innocence; that defendant was convicted of possessing child pornography, no physical contact was involved and none was attempted or intended; and defendant is 66 years old with no prior criminal history.

Recognizing that the purpose of SORA is to protect the community, especially its children, from sexual offenders, the Court, in evaluating the risk factors, and considering the arguments of counsel, finds that a downward [*4]departure is warranted and defendant should be classified as a level two sex offender. A level two classification will adequately protect the children in the community and satisfy all of the other goals of Article 168. As the trial and hearing of this matter generated a great amount of publicity, the media has sufficiently saturated the community with the information the statute would require to be made public. Moreover, the defendant, who is 66 years old, has no prior record, and was convicted of the instant crimes for which there is no evidence of any physical sexual contact with his victims, poses less of a risk than the typical level three offender who — in most if not all cases — has had some untoward physical contact with his/her victim(s). As such, this Court finds that the life registration period provided for in a level two classification is an adequate period to satisfy the salutary goals of SORA and to protect the most vulnerable among us - our children - from this 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.

E N T E R

Dated: July , 2012

Poughkeepsie, New York

HONORABLE VICTOR J. ALFIERI, JR.

J.C.C. Footnotes

Footnote 1: Defendant was convicted, after a non-jury trial, of two counts of Promoting a Sexual Performance by a Child and 134 counts of Possessing a Sexual Performance by a Child. By Decision dated May 8, 2012, the Court of Appeals modified the order of the Appellate Division by dismissing one of the counts of Promoting a Sexual Performance by a Child and one of the counts of Possessing a Sexual Performance by a Child and affirmed on the remaining counts. On the date scheduled for the SORA hearing, the Court also resentenced the defendant in accordance with the Court of Appeal's decision.

Footnote 2: Defendant's Exhibit A, a letter dated June 21, 2012 to this Court from Nathan Z. Dershowitz, Esq., defendant's attorney, pertained to the resentencing of the defendant and not the SORA hearing.

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).