People v Barber

[*1] People v Barber 2010 NY Slip Op 51032(U) [27 Misc 3d 1234(A)] Decided on May 11, 2010 Supreme Court, Westchester County Molea, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 11, 2010
Supreme Court, Westchester County

The People of the State of New York

against

Christopher Barber, Defendant



S04-143



Honorable Janet DiFiore

Westchester County District Attorney

Westchester County Courthouse

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, New York 10601

Attn: A.D.A. Michael Delohery

Bernard V. Kleinman, Esq.

Attorney for Defendant

2 Gannett Drive, Suite 418

White Plains, New York 10604

Richard A. Molea, J.

Pursuant to Correction Law §168-o(2), the defendant has filed a petition with this Court through which he seeks to be relieved of his duty to comply with the registration obligations set forth in Article 6-c of the New York State Correction Law (commonly known as the Sex Offender Registration Act [SORA]) as required by the Decision and Order of this Court, filed and entered on January 18, 2005, designating him a Level Two sex offender. In the alternative, the defendant seeks the downward modification of his designation as a Level Two sex offender to that as a Level One sex offender.

On April 20, 2010, upon the appearance of the defendant with his retained counsel, Bernard V. Kleinman, Esq., and that of Assistant District Attorney Michael Delohery of the Westchester County District Attorney's Office, this Court conducted a hearing upon the instant petition. Upon consideration of the instant application, this Court considered the petition and affirmation of counsel for the defendant, the testimony of the defendant, the updated recommendation report of the Board of Examiners of Sex Offenders (hereinafter, the Board), and the oral arguments of defense counsel and ADA Delohery, and upon same makes the following findings of fact and conclusions of law:

Findings of Fact

On April 7, 2004, the defendant entered pleas of guilty before this Court to the crimes of Promoting an Obscene Sexual Performance by a Child, in violation of Penal Law § 263.10, andAttempted Disseminating Indecent Material to Minors in the first degree, in violation of Penal Law §§ 110 and 235.22. The underlying offenses were committed by the defendant through his communication with an undercover investigator of the Westchester County District Attorney's Office, who misrepresented himself to be a fifteen-year-old girl, through the use of computer-based Instant Messenger, electronic mail and "chat room" communications. The defendant's repeated communications with the undercover investigator continued for approximately three months, between October 22, 2003 and December 9, 2003, and involved the defendant's use of electronic mailing to send messages containing sexually explicit language and [*2]images depicting child pornography for the purpose of inviting and inducing the recipient whom he believed to be a fifteen-year-old girl to engage in sexual activity with him. On July 28, 2004, the defendant was sentenced by this Court to serve an intermittent term of incarceration of fifteen days and a concurrent ten-year term of probation supervision. By Decision and Order, filed and entered on January 18, 2005, the defendant was designated by this Court to be a Level Two sex offender within the meaning of Correction Law §168-d upon the application of the guidelines set forth in subdivision five of Correction Law §168-l, which resulted from this Court's upward departure from the presumptive Level One designation to a Level Two designation. The defendant's appeal of the Court's assignment of a Level Two designation was affirmed by the Appellate Division, Second Department in People v. Barber (29 AD3d 660).

Upon receipt of the instant petition, this Court requested that the Board provide it with an updated recommendation pertaining to the sex offender pursuant to Correction Law § 168-o(4) in order to enable the Court to properly consider the merits of the instant application. By letter dated February 12, 2010, the Board provided the Court with an updated report through which the Board related that the defendant's conduct while on probation has been satisfactory and that he has successfully participated in a sex offender treatment program, resulting in the Board's indication that it has no objection to the defendant's instant application for a downward modification to a Level One designation.[FN1]

In support of the instant application, the defendant asserts that he is presently residing with his mother, who is providing him with a degree of supervision in the residence they share in the State of Connecticut. The defendant further relates that he is presently 46 years-of-age and is gainfully self-employed despite being a paraplegic confined to a wheelchair as a result of a thoracic spine injury he suffered following an automobile accident in 1998. In addition, the defendant testified that he is involved in a relationship with a woman who is aware of his conviction of the underlying offenses and has maintained an active relationship with his son who is 14 years-of-age and resides with his mother in the State of Massachusetts. Furthermore, consistent with the updated recommendation report provided to the Court by the Westchester County Department of Probation, the defense relates that the probation authorities supervising the defendant in the State of Connecticut report that the defendant is in compliance with his probation requirements and has completed a required sex offender treatment program. Based upon these assertions, the defense argues that the defendant presents a minimal risk of recidivism.

Upon the presentation of oral argument at the instant hearing, the People took the position that they do not object to the relief requested through the instant petition insofar as the defendant seeks the downward modification of his designation to that as a Risk Level One sex offender, however the People do object to the petition insofar as the defendant seeks to be relieved of his duty to comply with the registration obligations set forth under SORA. [*3]

Conclusions of Law

With respect to the consideration of the defendant's instant petition, it is instructive to identify the manner through which the designated level of notification is determined and the distinct differences between the three available levels of notification prior to addressing the merits of the instant application. In this regard, the sentencing court is required to determine the duration of a defendant's registration obligations upon application of the guidelines set forth in Correction Law §168-l(5), and to determine the appropriate level of notification upon consideration of the factors set forth in Correction Law §168-l(6). The Board developed the Risk Assessment Instrument (hereinafter, RAI) to serve as a computational table which is designed to enable the courts to make the required calculations for the purpose of determining the appropriate level of notification and duration of registration applicable to a sentenced defendant. The RAI allocates a point total to each of the statutory recidivism risk factors listed in Correction Law §168-l(5) and adds the total number of points allocated to a particular sex offender to reach a Total Risk Factor Score, which provides for one of three distinct levels of notification and registration requirements, identified as Level One, Level Two or Level Three.

Each of these three classification levels provides for distinct notification and registration requirements. Pursuant to a Level One designation, the local police receive information from the Board of Examiners of Sex Offenders (hereinafter, Board) about a sex offender residing in their jurisdiction, but are not authorized to provide community notification concerning the sex offender (Correction Law §168-l[6][a]), although a caller to the "900" telephone hotline can obtain confirmation that an identifiable individual is known to be a sex offender (Correction Law §168-p[1]). A Level One sex offender is also required to register annually for a period of 20 years with the Division of Criminal Justice Services (hereinafter, DCJS) by filing a written form (Correction Law §§168-f, 168-h) and must advise DCJS of any change of address in writing at least ten days prior to such change (Correction Law §168-f[4]). Pursuant to a Level Two designation, a sex offender is required to register annually with DCJS for life by filing a written form (Correction Law §§168-f ,168-h) and any change in address must be reported to DCJS in writing and the local police may notify "entities with vulnerable populations" of a Level Two sex offender's identity, including photograph and approximate address, as well as background information about the crime including the manner of commission and type of victim, and any special conditions imposed by the sentencing court, probation department, or parole board, which may also be disseminated through the "900" telephone hotline (Correction Law §168-p [1]). Pursuant to a Level Three designation, a sex offender must register in person with the local police department every ninety (90) days (Correction Law §168-f), and the duration of their registration obligations continues annually for life (Correction Law §168-h) and any change in address must be reported to DCJS in writing ten (10) days prior to such change (Correction Law §168-f [4]). The local police may disseminate all of the information available to them regarding a Level Three sex offender, in addition to their exact residential address. Furthermore, DCJS is required to distribute a subdirectory of all Level Three sex offenders to local police departments, where it is to be made available for public inspection (Correction Law §168-q). Such information may also be accessed by the public through the internet at [*4]http://criminaljustice.state.ny.us/nsor/index.htm.

Turning to consider the merits of the instant petition, the Court will first address the defendant's application to be relieved of his duty to comply with his registration and verification obligations as a Level Two sex offender under SORA. Although the defendant asserts that this application is brought pursuant to Correction Law §168-o(2), this subdivision does not afford the defendant a procedural vehicle through which such relief may be sought as it only provides for the modification of the level of notification. Rather, an application brought by a designated Level Two sex offender seeking to be relieved of his continuing duty to register under SORA is governed exclusively by Correction Law §168-o(1), which, insofar as applicable here, provides that such an application cannot be brought until the designated Level Two sex offender has been registered for "a minimum period of thirty years". Accordingly, as the defendant has been a registered Level Two sex offender for a period of less than 6 years, Correction Law §168-o(1) precludes the Court from relieving him of his continuing duty to register under SORA until he has been so registered for an additional twenty-four year period (see, People v. Pero, 49 AD3d 1010, 1011). Based upon the foregoing, the defendant's application to be relieved of his duty to comply with his registration and verification obligations as a Level Two sex offender under SORA is denied.

Turning next to consider the defendant's application seeking the modification of his designated risk level from a Level Two to a Level One, the Court recognizes that such an application is governed by Correction Law §168-o(2), which provides a sentenced sex offender who has previously been the subject of a SORA risk level designation with the opportunity to petition the sentencing court to modify the previously designated risk level. The governing statute further provides that upon seeking such relief, the sex offender bears the burden of proving the facts supporting the requested modification by clear and convincing evidence (see,Correction Law §168-o[2]).

Through the petition, affirmation and the accompanying documentary material submitted in support of the instant modification application, the defendant argues that his completion of the mandated sex offender treatment program, his compliance with the terms of his probation supervision, his present relationship with his son and a girlfriend, his residence in a supervised setting and his physical limitations are sufficient to establish that he poses a reduced level of risk to society which is sufficient to merit the downward modification of his risk level from a Level Two to a Level One. Significantly, the Court notes that the neither the People nor the Board oppose the defendant's application for the downward modification of his risk level to a Level One.

With respect to the defendant's demonstrated compliance with the terms of his probation supervision and mandated sex offender treatment programming, the Court finds that the defendant's compliance with such programming and the other terms of his probation supervision presents a compelling change in circumstances indicative of a diminished risk of repeat offense, as well as a diminished threat to the public safety.

With respect to the defendant's efforts to maintain a caring relationship with his son and his involvement in a committed relationship with a woman who is aware of his conviction of the underlying crimes, the Court notes that the defendant seems to have benefitted from positive changes in his maintenance of inter-personal relationships, the Court finds that same presents a [*5]compelling change in circumstances which indicates that the defendant bears a diminished risk of repeat offense, as well as a diminished threat to the public safety.

Finally, with respect to the defendant's claim that his supervised residential situation and his physical limitations diminish his risk of recidivism, the Court appreciates the devotion of the defendant's mother to his supervision and finds that the obvious physical limitations placed upon the defendant by his paraplegia presents a compelling basis which is sufficient to establish that the defendant bears a diminished risk of repeat offense, as well as a diminished threat to the public safety.

Based upon the foregoing findings of fact and conclusions of law, the instant petition seeking the modification of the defendant's designated risk level from a Level Two to a Level One pursuant to Correction Law §168-o(2) is granted.

The foregoing shall constitute the Decision and Order of this Court.

Dated: White Plains, New York

May 11, 2010

Honorable Richard A. Molea

Acting Justice of the Supreme Court

Honorable Janet DiFiore

Westchester County District Attorney

Westchester County Courthouse

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, New York 10601

Attn: A.D.A. Michael Delohery

Bernard V. Kleinman, Esq.

Attorney for Defendant

2 Gannett Drive, Suite 418

White Plains, New York 10604 Footnotes

Footnote 1:It is significant to note that the Board's updated report did not contain any reference to the defendant's request that he be relieved of his duty to comply with all of the applicable registration obligations set forth in Article 6-c of the New York State Correction Law as required by the Decision and Order of this Court, filed and entered on January 18, 2005, designating him a registerable sex offender.