People v LaBarbera

[*1] People v LaBarbera 2011 NY Slip Op 52220(U) Decided on December 12, 2011 Supreme Court, New York County Stone, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2011
Supreme Court, New York County

The People of the State of New York

against

Ralph LaBarbera, Defendants.



672/2007



For the People: Colleen Walsh, Esq. New York County District Attorney's Office

For the Defendant: Carl s. Kaplan, Center for Appellate Litigation

Lewis Bart Stone, J.

This proceeding is to determine the level defendant Ralph LaBarbera ("LaBarbera") is to be adjudicated under the Sex Offender Registration Act ("SORA"). NY Correct. Law § 168-n.

FINDINGS OF FACTS

On January 8, 2007, a New York Police Department ("NYPD") undercover detective posing as a participant in an Internet chat room was contacted by another chat room participant known by the alias RLB3547@aol.com ("RLB"). From January 8 to January 23, 2007, RLB engaged in several exchanges with the detective, stating, inter alia, that he wanted to engage in sexual acts with underage children, that he possessed child pornography both at home and at his workplace, and that he shared such pornography through Web sites. RLB also electronically transmitted a video image and still image of child pornography to the detective.

The NYPD identified RLB as a username of LaBarbera and obtained a warrant to search his workplace and residence. On February 7, 2007, while executing the warrant, the detective observed LaBarbera using the scree name RLB, and LaBarbera was arrested. A digital video disc (the "DVD") containing offending images was seized.

In his videotaped statement after arrest (the "Video Statement"), LaBarbera admitted his use of RLB to view pornographic images of underage girls. Approximately two and a half hours into his interview, LaBarbera also confessed to having sexual relations with five underage girls, but added that he only saw each of such girls once because he did not perform well and was embarrassed.

LaBarbera was charged and indicted on two counts of Promoting a Sexual Performance by a Child Less Than 17 years of age, P.L. §263.15, a Class D felony, and twenty-two counts of [*2]PL §263.16, Possessing a Sexual Performance by a Child, all relating to the seized DVD; he was not indicted for having sexual relations with any of the five underage girls.

PROCEDURAL HISTORY

On June 18, 2007, LaBarbera pled guilty to one count, Promoting a Sexual Performance by a Child Less Than 17 Years of Age, P.L. § 263.15, a Class D felony, "to cover all counts in the indictment," with the understanding that he would receive the maximum sentence for such charge, i.e., 2 1/3 to 7 years.

LaBarbera allocuted that on January 8, 2007, he electronically sent a still image of sexual conduct by a child less than 17 years of age to someone in an Internet conversation. He stated that he could not remember which image it was or what conduct it depicted, and that he did not know that child's age except that she was under 17. He further allocuted that he electronically transmitted a still image of a nude minor girl to the detective on January 15, 2007, and a video image of an adult male having sex with a female child on January 16, 2007.

As LaBarbera has been convicted of a sex offense, he is subject, under SORA, to certain reporting requirements upon his release, depending on the Court's determination of his SORA level. Under SORA, such level is initially determined in a Sex Offender Risk Assessment made by the New York Board of Examiners of Sex Offenders ("the Board"). Such initial assessment estimates a defendant's risk of re-offense, scoring certain risk factors to determine the presumptive SORA level. The Board may also recommend a departure, upward or downward, from the presumptive level. After the Board's assessment and departure recommendation, if any, the Supreme Court must conduct a de novo review of the Board's assessment and recommendation, and designate the appropriate SORA level for the defendant.

During LaBarbera's plea, his counsel made a record that he had discussions with the People, and based on those discussions, he understood that the People would not seek or recommend a Level III assessment. The Court taking LaBarbera's plea did not mandate such level because a SORA assessment requires, inter alia, a consideration of the defendant's post-conviction behavior. The People acknowledged to such Court that the People's advice to the defense regarding risk assessment recommendations was based on the People's current evaluation of LaBarbera, but that it was not a guaranteed part of the plea. The Court noted that it did not want "that that to be some consent," to which defense counsel replied, "of course."

The Court then addressed LaBarbera directly, noting that the crime to which he was confessing was a class D felony and stated the maximum sentence. The judge then admonished LaBarbera: "There are a number of counts — well, there are two counts of promoting and then a number of counts of possessing sexual performance by a child in this indictment. And, at least the first two promoting counts can be consecutive. I'm not going to go into the remaining possession counts, which present certain legal issues on the consecutive issue. So what I am promising you on your plea to the one count is the maximum, which is two-and-a-third to seven years in state prison."[*3]

After the Court advised LaBarbera that his risk assessment was to be determined at a later date, LaBarbera acknowledged that his plea was nonetheless fully voluntary.

SORA Procedure

LaBarbera was scheduled for release on October 6, 2011. On July 12, 2011, the Board scored LaBarbera at 45 points, presumptively establishing him as a Level I ranking. The People have asserted that the Board erred and that LaBarbera merits a score of 105 points, a presumptive Level II ranking.

While LaBarbera pled guilty to a single count of possession of child pornography, the DVD contained nine separate photographs and thirteen separate video recordings.[FN1] The People contend that LaBarbera should therefore be scored 30 points under "Factor 3 — Number of Victims" because each child depicted in a pornographic image is a "victim" for risk assessment purposes. People v. Johnson, 47 AD3d 140 (4th Dept. 2007), aff'd,11 NY3d 416 (2008). The People assert in their "Recommendation" that there were "twenty-two victims in this case — one victim for each of the twenty-two counts of possessing a sexual performance by a child." The People also seek to assess LaBarbera 20 points because LaBarbera had no prior relationship with such victims, and 10 additional points for his failure to accept responsibility. They also contend that LaBarbera's Video Statement in which he admitted having sexual relations with five underage girls constitutes clear and convincing evidence of an aggravating factor not adequately accounted for in his risk factor score, requiring an upward departure to Level III.

LaBarbera denied that the images presented clear and convincing evidence of three or more underage victims and that there was no basis in the record to prove by clear and convincing evidence that the minors in question were strangers to him. Further, the defense argues that while in treatment in prison, LaBarbera initially stated in treatment that he only used the child pornography "for financial gain," LaBarbera's social worker at the Sex Offender Treatment program says that such concealment and denial is common to at least 90% of all such clients. The social worker noted that LaBarbera made real progress and opened up about his "attractions" to children, and he was able to successfully graduate from the program after six months. LaBarbera also highlights the fact that he is a 53-year-old man who has been through treatment and counseling; he claims post-release studies of child pornography possessors and his age are strong indicators that he is at low risk for recidivism.

Finally, LaBarbera has told his counsel that he did not actually engage in sexual acts with the minors as he stated in his video statement, but was instead bragging, trying to be "macho" and that what he said was both incorrect and "stupid." His counsel argues that the prosecution's inability to find or develop and corroborating evidence to LaBarbera's "confession" supports his contention that the claims were in fact mere braggadocio, and thus there is no clear and convincing evidence of LaBarbera's dalliance with underage girls and requests that such issue be removed from consideration in this proceeding. Further, LaBarbera asks the Court to make a downward departure and to adjudicate him as a Level I sex offender.

CONCLUSIONS OF LAW

A SORA level determination is a two-step process. [*4]

The first step requires the Court to hold a de novo hearing on the Board's scoring of the SORA risk assessment factors to establish a presumptive risk level. The second step is to consider whether a departure, either upward or downward, from the presumptive risk level is warranted.

Here, the Board scored LaBarbera with 45 points, a presumptive Level I risk. The People assert that the Board erred in failing to assess LaBarbera 30 points for Factor 3, Number of Victims (Factor 3), 20 points for Relationship with Victims and (Factor 7), 10 points for Acceptance of Responsibility (Factor 12). LaBarbera accepted the 45 points scored by the Board, but challenged the People's suggested additional points. As there was no challenge by LaBarbera to the 45 points scored by the Board, this Court has limited its review to the additional 60 points which the People contend should be assessed and which LaBarbera disputes.

Although the indictment charged LaBarbera with separate counts of possession of still and video images of sexual performances, LaBarbera pled to a single count of the indictment. He admitted, however, that he possessed the 22 separate images and the parties concur that there are 22 separate images on the DVD.

The standard of proof to be applied in making findings in a SORA hearing is that the People must establish facts by clear and convincing evidence. Hearsay evidence is permitted as well as evidence otherwise admissible in a criminal proceeding. LaBarbera has conceded based on his plea and allocution, that the People established beyond a reasonable doubt that he possessed the images on the DVD and that at least one of these images met the standard for his criminal conviction. However, LaBarbera challenged whether such was sufficient to establish whether there were three or more victims within the meaning of SORA's scoring standard. While a "victim" for SORA purposes includes a child whose pornographic image possessed by a defendant, the allocution to the possession of twenty-two images does not necessarily prove the number of different individuals depicted, or that each different individual was under age, or that the images were indeed sexual performances under the applicable legal standard. To support their contention, the People submitted the DVD to the Court for inspection.

To resolve this issue, the Court, in the presence of the parties, reviewed the DVD in camera on a computer supplied by the People, observing each still image and sufficient portions of each video image to enable the Court to consider whether the girls depicted were real persons or not, whether the girls were underage, the number of different girls depicted, and whether the images depicted prohibited activity. The Court conducted such in camera review, recognizing that the display of pornographic images of underage girls in a public court setting would itself victimize them further, and that copying the DVD to another computer such as the Court's own computer would increase the risk of dissemination through unauthorized hacking. The parties consented to this process.

After such viewing, this Court finds as facts, established by clear and convincing evidence, that 1) all 22 images were of real girls (as distinct from computer-generated or artist-drawn girls); 2) some of the different images depicted the same girls and, in some others, the identity of the girl could not be clearly and convincingly determined not to be the same as a girl depicted in another image; 3) in not all of the images could the girl clearly and convincingly be determined to be underage; and 4) adopting the United States Supreme Court endorsed standard [*5]for pornography, that a Court can "know it when [it] see[s] it,"[FN2] that the People established that the DVD depicted at least three, real, different underage girls, engaging in prohibited activities.[FN3] Thus, the Court will assess LaBarbera 30 points on Number of Victims, Factor 3, as urged by the People.

The People assert that the Board erred in not assessing LaBarbera 20 points under Factor 7, Relationship with Victims. LaBarbera argues that the record lacks clear and convincing evidence to support such assessment.

The Court of Appeals in People v. Johnson, supra, discussed Factor 7 in the context of a conviction for possession of child pornography. The Court recognized that "most people who commit such crimes never have any contact with the children whose images they look at." Johnson at 416. Such practical consideration, recognized by the Court of Appeals, when added to LaBarbera's own statement to the assistant district attorney after arrest that the images were acquired by him for trades with others in exchange for celebrity images LaBarbera had discovered and downloaded from the Internet, is sufficient for this Court to find by clear and convincing evidence that LaBarbera had, within the meaning of this risk factor, victimized strangers.[FN4] Accordingly, the Court finds that LaBarbera must be assessed 20 points under Factor 7.

The People also seek to assess LaBarbera 10 points under Factor 12. Here the People contend that during his treatment while incarcerated, LaBarbera minimized his responsibility. LaBarbera counters that in his video statement, in his allocution, and in his sentencing, he took full responsibility for his crimes. LaBarbera further submitted hearsay evidence of statements of the person who ran his group therapy program in prison. Those statements, while confirming that LaBarbera initially minimized his responsibility, noted that he later opened up to take full responsibility, that such progression was usual in such programs, and was, effectively, what such programs were designed to achieve — that is, the recognition by the offender of his bad behavior. As the People have not challenged this evidence, this Court will accept such hearsay evidence, and considering such evidence, along with the remainder of the record, finds that the People have not established by clear and convincing evidence a basis to assess LaBarbera 10 points Factor 12. [*6]

In conclusion, this Court will modify the Board's findings to score LaBarbera with 95 points, making him a presumptive Level II sex offender.

Overrides

SORA provides that, in appropriate cases, a defendant in a SORA hearing may seek a downward departure from the presumptive level to a lower level and that the People may also seek an upward departure to a higher level. Such departures are at the discretion of the Court, which must explain the reasons for its exercise of its discretion or its reasons for declining to do so. Such decision is reviewable, on appeal, on the grounds of an abuse of such discretion.

Request for Downward Departure

LaBarbera seeks a downward departure citing People v. Johnson, supra. In Johnson, the Court of Appeals considered a similar case involving pornographic images of children. Johnson had been convicted by plea to an Attempt to Promote a Sexual Performance by a Child and was sentenced to ten years' probation. He was originally charged with 11 felony counts of Promoting a Sexual Performance by a Child, based on computer downloads of pornographic images of 13 to 14 year old children. After his SORA hearing, he was adjudicated by County Court as a Level II offender. On appeal, to the Fourth Department confirmed such finding, and although they rejected County Court's assessment of certain factors, the net result was still a presumptive Level II.

On appeal to the Court of Appeals, Johnson argued that Factor 7, assessing him with 20 points because of his lack of prior relation to the victims, made no sense. Judge Smith stated in the opinion that "the case where the offender and the children are acquainted would seem to present a greater threat to the community, not a lesser one." Johnson at 419 (emphasis added)

recognizing the seemingly anomalous result of assessing 20 points under Factor 7 to the downloading of internet child pornography on the grounds of lack of relationship. Notwithstanding such anomaly, the Court of Appeals unanimously upheld the SORA scoring system as proper and unambiguous, but noted that the Board's assessment of points was presumptive and that the Board could suggest, and the Court could make, a departure where "there exists an aggravating or mitigating factor of a kind or to a degree that it is otherwise not adequately taken into account by the guidelines." Board's Commentary on Guidelines at 4.

Accordingly, while a Court might take such anomaly into account in considering a downward departure, the Court of Appeals in Johnson noted that Johnson had sought no downward departure at his SORA hearing, and therefore the Court of Appeals lacked jurisdiction on appeal to consider whether a downward departure would have been appropriate. In affirming, on this issue, because no departure was sought below, the Court's suggestion that such anomaly might be the basis for a departure is thus dicta. While dicta does not expressly bind this Court, this Court considers Johnson to be well-reasoned and persuasive on the point, and will proceed to consider whether the "anomalous" award of 20 points for Factor 7 is sufficient for this Court to make a discretionary downward departure.

While not controlling, in making this determination, several policy issues are to be considered when the sex offense in question relates to Internet child pornography. The existing jurisprudence regarding sex offenses generally does not transfer easily to this specific crime. First, the primary purpose of sex offender registration is to protect the community to which the defendant will return after the completion of his sentence. When a sex offender obtains child [*7]pornography from the Internet, there is no reason for the Court to assume or not to assume or believe that he would seek out members of his own community, rather than children from another state, country, or continent.[FN5] On the other hand, the presumption that offenders who obtain and possess child pornography through the Internet do not know their victims, a presumption seemingly adopted by the Court of Appeals, is not based on — or disputed by — any known empirical proof of which this Court is aware. While the Courts have experience and thus reasons to believe that those who commit physical sex crimes are likely to recidivate and commit further physical sex crimes, by reason of the Internet's recent emergence, Courts have little if no experience as to the likelihood of re-offense for possessors of Internet child pornography or whether they are likely to commit physical sex crimes as well. While further studies may elucidate correlations or lack of correlations in this area, the parties have presented none and this Court is unaware of any.

Including the possibly anomalous Factor 7 found by this Court, LaBarbera's presumptive score is 95 points. If Factor 7 in this assessment were discounted to zero, LaBarbera's score would be 75, still making LaBarbera a presumptive Level II sex offender in any event.

While such analysis does not end the authority of this Court to make a downward departure, as the Court of Appeals noted in Johnson, "departures . . . are of course, the exception, not the rule." While the acceptance of LaBarbera's argument on Factor 7 may reduce his score to 75 points, it cannot reduce him to Level I. As LaBarbera has presented no other evidence or reason for the Court to depart below such presumptive level, this Court in its discretion declines to make a downward departure.

Request for Upward Departure

The Board also recommended an upward departure to Level III based on four factors, stating, "Not only did Mr. LaBarbera possess images of child pornography which are indicative of his sexual urges, he also acted upon these urges with at least five children. He continued to reinforce his sexual desire for children by masturbating to the images and attempted to normalize his behavior by utilizing a chat group to find other like-minded individuals. His progress in treatment is questionable given that he went from telling Police that he had contact victims to telling his sex offender group that his crime was for financial gain. Under these circumstances, the Board feels the community would be best protected with a departure to Level III."

The People also seek an upward departure to Level III, but base their recommendation solely on LaBarbera's "admission" in the Video Statement that he had sex with five underage girls. Initially, this Court agrees with the People that the Board's reasons, other than the issue of LaBarbera's alleged confession, are not appropriate factors to consider an upward departure. First, there is no evidence in the record to support the Board's contention that LaBarbera masturbated to the images. He stated in his Video Statement that the reason he suggested masturbation in his online communications with the undercover detective was to determine [*8]whether the person he was addressing via the Internet was, in fact, an undercover detective. While this test may not have been an effective one, there is otherwise no evidence that such alleged masturbation actually occurred. Second, the established SORA assessment factors already address LaBarbera's rehabilitation under "Acceptance of Responsibility." It is inconsistent for the Board to not assess LaBarbera points for this factor and then use that factor as the basis for an upward departure from his presumptive score. Third, utilizing a chat group to find "like-minded individuals" is no more than a description of how the crime of sharing child pornography is conducted.

Thus, the only factor that is appropriate for this Court to consider is LaBarbera's confessed intercourse with five underage girls. The Court has reviewed the 3-plus hour Video Statement, where in the last twenty or so minutes of such Statement, LaBarbera admits to having intercourse with five different underage girls at times significantly earlier than the date of the statement. According to LaBarbera, such girls ranged from 13 to 17 years old, who he "encountered" in an Internet chat room entitled "I like older men." After chatting with them, on his office computer, he met each of them in Manhattan and took them to midtown hotel rooms, for which he paid cash, and had intercourse with each once. He never contacted or heard from any of them again. He was unsure of their names as he gave a false name himself (the Court finds credible that participants in sex chats on the Internet rarely use their own names). Although the police seized both his office and home computers and analyzed his "buddy lists," the police were only able to identify one possible girl near New York. Her parents refused the detectives access to such girl, and she was never interviewed. No indictment was sought.

By the time LaBarbera plead guilty, both his attorney and the People had reviewed the Video Statement and were fully aware of the contents. At plea, there was a colloquy as to SORA levels, whereby LaBarbera's counsel told the Court that his understanding with the People is that they would not seek an upward departure. The People replied to the effect that the eventual rating could not be agreed to as aspects of such rating would depend on post-conviction behavior assessment. Thus, such discussion was conducted with full awareness of the Video Statement.

In opposing an upward departure, LaBarbera has submitted an affidavit of his attorney stating that LaBarbera denied that the five encounters occurred and that their inclusion in the Video Statement was instead a false bragging of his prowess. At the SORA hearing before this Court, the defense did not offer LaBarbera's testimony and the People declined to call him or offer him immunity for a statement.

While a defendant in a criminal matter has the right to remain silent, and in such event the finder of fact may not draw any adverse inference against the defendant, the same is not true in a civil proceeding. Although it is clear that a SORA proceeding is not a criminal proceeding, courts have often referred to it as a "hybrid" proceeding between civil and criminal. Although in a civil proceeding a party retains his rights under the Fifth and Fourteenth Amendments of the United States Constitution and may decline to testify on the grounds of self incrimination, a trier of facts may in such event take an adverse inference as to what might have been such party's testimony. Further, in a criminal proceeding, a defendant may elect not to testify at all; whereas in a civil proceeding the defendant cannot refuse to testify at all and may only invoke privileges as to matters that may tend to incriminate him. Thus, a defendant in a civil case, who has already been convicted or acquitted of a crime and cannot be re-convicted by reason of double jeopardy [*9]protection, may not refuse to testify as to such crime. Similarly, one who has received immunity or for whom the statute of limitations from prosecution has run cannot invoke the privilege. After discussion of such issues with the parties, both the defense and the People declined to call Mr. LaBarbera to testify and neither offered the Court any authority as to what and to what extent the Court might consider both parties' decision not to call LaBarbera in evaluating the People's recommendation for an upward departure. The People also made it clear that they would not offer LaBarbera immunity for such testimony.

The standard for reviewing evidence to establish facts to be considered for an upward departure must be clear and convincing evidence. Based on this Court's observation of the Video Statement, this Court finds, by clear and convincing evidence, that LaBarbera confessed to engaging in sexual intercourse with five separate underage girls in New York County substantially before the time he was arrested on the case to which he pled guilty and on which the SORA proceeding is based. The Court also finds by clear and convincing evidence that LaBarbera's confessions were to events which would not have been time barred at the time of such confession,[FN6] and that LaBarbera has never been indicted for such confessed acts.

LaBarbera's counsel has submitted an affidavit of stating that LaBarbera told him that his confession as to the five sexual encounters was false and was made to brag of his sexual prowess. Such affidavit is submitted to counter LaBarbera's statements in the Video Statement. Such hearsay is expressly permitted in a SORA hearing, and the Court has admitted such affidavit as evidence. Although admissible, the weight to be given such hearsay statement is, of course, to be determined by the Court as finder of the facts. The weakness of such evidence is obvious. By submitting this hearsay statement through counsel, LaBarbera avoids any risk of prosecution for perjury, as well as all risk of cross-examination. While this Court has no basis to believe counsel is not reporting accurately, it has little basis to believe LaBarbera's statement to his counsel is true, except only for the fact that the People did not indict LaBarbera, and the Court's observation of the confession as to whether such confession made sense, i.e., was it plausible or likely to be true, or was it not? The Court also must weigh the colloquies in court at LaBarbera's plea and sentencing.

Finally, the Court must consider the implications of Criminal Procedure Law §60.50 which proscribes a criminal conviction based solely on a confession of the defendant.[FN7] This provision has been strictly construed to permit a conviction based on a confession only where there is evidence that the crime confessed to had been actually committed, i.e., that there was a corpus delecti. As CPL §60.50 is a statutory provision, it represents a public policy decision of this State to recognize that some People will confess to crimes they have not committed or even where no crime was ever committed. While CPL § 60.50 by its terms does not address the standard for an indictment, CPL § 190.65 provides that evidence is not legally sufficient to meet the probable cause standard for an indictment when "corroboration that would be required, as a [*10]matter of law, to sustain a conviction for such offense is absent." It follows that if, as a matter of law, a wholly uncorroborated confession cannot establish probable cause, it, a fortiori, cannot establish by clear and convincing evidence that the statutory rapes occurred so as to warrant an upward departure.

Further, LaBarbera's Video Statement itself, if true, established no more than five incidents of sexual intercourse, which only would constitute crimes to the extent that consent to the intercourse was ineffective due to the age of the girl, as sexual intercourse between consenting adults is not criminal. While LaBarbera stated the girls' ages in the Video Statement, his beliefs are not sufficient to establish the crime of statutory rape. It is the true age, not the beliefs of those engaged in the intercourse, that is relevant to such crime. Even if both participants believe one of the participants is underage, no statutory rape occurs if such participant is above the statutory "Plimsol line"; similarly, notwithstanding that a defendant believes the other participant is of full age, it is statutory rape if the other participant is not. The reliability of vital statistics voluntarily given over the Internet as a prelude to a non-recurring sexual liaison is suspect, since even the names of the communicants are routinely falsified. LaBarbera's Video Statement discusses this phenomenon.

While, within certain limits, a person's general age may be determined by observation, the accuracy of such a determination within a few years is doubtful in any particular case, and among teenage girls, the maturation rate and age of menarche varies substantially. That is why, in a criminal trial for statutory rape, a birth certificate or equivalent is usually deemed necessary to prove the age of a "victim." While the police attempted to follow up on LaBarbera's Video Statement, including seizing both his office and home computers to extract any messages to possible "victims," their inability to find more than one possible correspondent within New York or neighboring states constitutes some evidence to support LaBarbera's assertion of bragging.

Even considering the general applicability of the proposition, degustibus non disputandem est, [FN8] this Court's observation of LaBarbera now and at the time of his arrest (via the confession DVD) does not find him to have been a fully credible object of teenage female desire so that each of the five who allegedly came to him for sex would have, without further ado, had sex with him. Under the standard credibility charge, which requires the finder of fact to observe the "witness," the Court has some hesitation as to whether or not LaBarbera's claim of sexual conquest of the five girls was likely to be true.

The Court is also troubled by the People's position here seeking an upward departure after their representations made at the time of plea. At such time, both the People and LaBarbera's defense counsel were aware of the contents of both the DVD and the Video Statement. The indictment included two counts of Promoting a Sexual Performance by a Child and twenty-two counts of Possessing a Sexual Performance by a Child, one each for each still or video on the DVD. While there was no assurance that conviction on all counts would not result in consecutive sentences, the possession in question was all of one DVD and the promoting was related to LaBarbera's offer to transmit two of the images on the DVD to the undercover officer. Given the many decisions of the First Department relating to when consecutive sentences might be appropriate, it was a reasonable prediction that he would receive a maximum sentence of 2 1/3 [*11]to 7 years (for the D felony of Promoting a Sexual Performance by a C

hild, committed as a non-predicate felon). As the colloquy shows, his counsel had engaged in negotiations as to the SORA level and reasonably believed the People had committed not to seek an upward departure, at least on the basis of what was known at the time of the plea. While the terms of this understanding might have been imperfectly expressed, as is common in the hurly burly of Court proceedings, the undertaking in the colloquia of words regularly used in this county is clear to this Court that the parties understood the deal to have been that if the plea was taken, the People would not seek an upward departure for past known facts — which included the five alleged statutory rapes. To raise them now undercuts the plea bargain under which LaBarbera confessed. While a plea, once taken, should be "given back" if the Court decides not to proceed, LaBarbera has already served his term, and the toothpaste cannot be put back in the tube. While a SORA proceeding may not be the same as a criminal proceeding, this same principle should apply. Balancing all of the above and the consideration that this Court's rejection of the downward departure was itself discretionary, this Court does not find that it would be appropriate in this Court's discretion to make an upward departure.

Accordingly, this Court hereby adjudicates LaBarbera a Level II sex offender.

There remains one final issue. Due to conflicting presentations as to what and who was depicted in the images on the DVD, this Court made findings of fact that there was clear and convincing evidence that the images:

1. Were of human girls, as opposed to cartoons or computer-generated depictions; and

2.Were of at least three different girls; and

3. Such girls were clearly underage [FN9]; and

4. Such girls were being subjected to prohibited sexual activity.

Recognizing that such factual findings are subject to review by the Appellate Division, should LaBarbera wish to appeal, the Court hereby orders that the DVD be sealed and placed with the record of this Decision and Order, over the People's objection that the disclosure of the images would re-victimize the subjects of the images. Neither LaBarbera nor the People have waived their appellate rights.

The Court observes that although no assurance of absolute security is possible, the Court is constrained to include the DVD in the Court file because any failure to do so would impair LaBarbera's due process right to appeal the Court's SORA level finding.[FN10] The Court also notes [*12]that there is no assurance that District Attorney's file itself can provide greater security, or that the New York Police Department property clerk be a better assurance of non-disclosure. This order requiring the People to deliver the DVD to the Court to be sealed in the record of this proceeding is stayed for thirty days of this Decision and Order to allow the People to apply to the Appellate Division for a stay or a modification of this Decision and Order.

Placing and sealing such original DVD in the Court file, rather than a copy, will at least prevent more than one copy of the DVD to be available for theft or misuse to minimize the risk of further victimization of the children depicted.

This is the Decision and Order of the Court.

________________________Lewis Bart Stone, J.S.C.

DATED:December 12, 2011

Footnotes

Footnote 1:

Each recorded image was separately charged in the indictment.

Footnote 2:

Jacobellis v. Ohio, 378 U.S. 184 (1964) (Stewart, J., concurring).

Footnote 3:

As a finding of fact, such finding is of course reviewable by the Appellate Division. Below, this Decision and Order addresses the preservation of the record in this case to accord LaBarbera his right to review this Court's findings of fact on this issue.

Footnote 4:

In their arguments as to whether this Court should make a downward departure, both parties take the opposite sides of the arguments they advanced to this Court on the scoring under Factor 7. In addressing a downward departure, LaBarbera argues that because the images are of strangers, he poses less of a community risk, while the People argue that the images were not shown to be of strangers.

Footnote 5:

In this case, the images observed by this Court were of Caucasian children, who are present in many countries of the world.

Footnote 6:

The Court makes no findings as to whether the statute of limitations under CPL § 30.20(2)(e)-(f) has since passed.

Footnote 7:

Although the language in the statute is silent on the issue, such provision applies to conviction by trial, and not to a plea before evidence is introduced where the defendant admits to the crime.

Footnote 8:

Roughly translated as "there is no accounting for taste."

Footnote 9:

As the Internet is international, there is no basis for this Court to determine where the still and video images were shot. As the age of consent to sex varies throughout the world, it would be therefore difficult, in many cases, to ascertain whether the activities depicted were crimes where they occurred. However, this Court's observation of the images found, as a fact, that there were enough girls of young enough age to have been clearly victims under virtually any reasonable definition of the age of consent by any civil society.

Footnote 10:

A recent Second Department decision on child pornography required seized computer files to be preserved for in camera inspection as to whether the seized files were in fact all contraband, and whether the criminal defendant, as a civil plaintiff, could recover any non-contraband images after serving his sentence (i.e. music files and non-pornographic images). Correnti v. Suffolk Cty., 930 N.Y.S.2d 624 (2nd Dept. 2011). A fortiori, due process rights should warrant the preservation of the DVD to preserve the materials for appellate review in this case.