PEOPLE v. CROWLEY (2016)

DECISION AND ORDER

This matter comes before the Court pursuant to the Sex Offender Registration Act (SORA) to determine a risk level designation for defendant, a Monroe County resident who was convicted of a federal offense triggering the requirements of SORA. A hearing was conducted on June 24, 2016, with defendant present and represented by assigned counsel and the People also appearing by counsel, and at that time the Court determined defendant's final risk level. This decision/order supplements that ruling.

The Board of Examiners of Sex Offenders (Board) assessed defendant as a Risk Level 1 (Low) offender but suggested an upward departure to Level 2 (Moderate). Defendant opposed the upward departure to Level 2 while the People concurred with it. The Board determined that a total of 55 points should be assessed against defendant pursuant to the Risk Assessment Instrument (RAI) in the following manner:

20 points - Number of victims

20 points - Age of victim

15 points - Drug or alcohol abuse

Defendant was convicted by guilty plea in federal court of Knowingly Receiving and Attempting to Receive Child Pornography and was sentenced on March 13, 2012 to 60 months incarceration followed by 10 years of supervised release. At the time of the hearing he was residing at a residential re-entry center in Monroe County and was scheduled to be released on June 28, 2016. The Court notes that defendant enticed two girls, aged 12 and 13, to send nude photographs of themselves to him and that he sent nude photographs of himself to one of the girls. In addition, he attempted to get the 12 year-old girl to leave her residence to meet him to engage in sexual activity and suggested that they get high when they meet. With regard to the 13 year-old girl, defendant exchanged messages with her in which he asked her if she wanted him to “cum” inside her and asked her when she would be home so he could be there to tuck her into bed. At one point he drove to the girl's residence.

The Board suggests an upward departure because defendant was actively soliciting the 12 year-old victim to meet him with the intent of having sexual contact with her and sought to meet the 13 year-old girl without adults present.

The Sex Offender Registration Act was intended to provide notice to the community of the risk of sex offenders released in the area. There is no magic formula for making a determination as to the risk level posed by a particular offender. Although the risk assessment instrument allows the Court and the Board to utilize a tool for a numerical determination of risk the Court must look at all the facts and circumstances in order to make an accurate assessment of the risk that each individual offender poses. The law provides that the Court shall review the Board's recommendation and has the discretion to depart from such recommendation in arriving at a higher or lower classification after considering the risk factors and giving defendant an opportunity to be heard (Correction Law § 168-n [1], [2] ). In this instance the Court sees no reason to depart from the Board's recommendation regarding both the risk level and the departure.

Under all of the circumstances the Court believes that an upward departure to Level 2 more accurately reflects defendant's risk to reoffend and thus it is the determination of the Court that defendant be assessed as a Risk Level 2 (Moderate) offender and thereby be required to register in compliance with the Correction Law of the State of New York, and defendant's risk level shall be entered into the Sex Offender Registry administered by the Division of Criminal Justice Services.

This constitutes the Order of the Court.

VICTORIA M. ARGENTO, J.