The defendant was arrested on March 13, 2006. The felony complaint alleged that from on or about March 9, 2006, through on or about March 13, 2006, the defendant responded to a series of e-mails and instant messages sent over the internet by a detective who was purporting to be a 14-year-old girl. The defendant allegedly suggested that he and the under-aged girl engage in sexual intercourse, oral sex and other sexual conduct. The defendant was arrested on Madison Avenue and 24th Street, in Manhattan, as he was going to meet the 14-year-old girl he had been e-mailing and text messaging. At the time of his arrest, the defendant had two condoms and a receipt for condoms on his person.

The defendant was indicted and charged with an attempt to commit the crime of rape in the second degree, in violation of Penal Law ("PL") §§110/130.30, an attempt to commit the crime of criminal sexual act in the second degree, in violation of PL §110/130.45(1), and an attempt to commit the crime of disseminating indecent material to minors in the first degree, in violation of PL §§110/235.22. On August 24, 2006, the defendant pleaded guilty, before the Honorable Michael Ambrecht, to the crime of attempted rape in the second degree, in violation of PL §§110/130.30. On January 10, 2007, Judge Ambrecht sentenced the defendant as a sex offender to probation for ten years with the condition that the defendant continue in The Mustard Seed Program ^[FN1]. A hearing, pursuant to §168-n of the Sex Offender Registration Act ("SORA"), was ordered to determine the defendant's sex offender's level of risk.

On March 26, 2007, the parties appeared before this court for the SORA hearing. The People submitted the SORA Risk Assessment Instrument. The court asked the defendant if he was in agreement with the People's calculation of a Level 2 risk for the defendant. When the defendant answered no, the court proceeded to review the scores, allotted by the People, to each [*2]risk factor. The parties agreed on all but two of the risk factors, number 4 - duration of offense conduct with the victim and number 14 - supervision.^[FN2]

Risk Factor Number 4 - Duration of Course of Conduct

The People "concede[ed] [that] there was no actual touching[,]" (Transcript of SORA Hearing ("SORA Hearing") at p. 5) or sexual contact between the defendant and the victim. To support its determination to give the defendant a score of 20 for risk factor 4 and their argument that it was the defendant's intent to actually engage in a course of conduct and that the repeated e-mails and instant messaging constitute a course of conduct, the People provided the court with transcripts of the e-mails and instant messaging "chats" between the defendant and the victim. (SORA Hearing at p. 5) The defense argued that since there was no actual contact, only contact over the internet, the defendant should be rated a score of "0" for duration of the course of conduct risk factor. (SORA Hearing at p. 7)

The court asked the parties if either side had any case law to support their argument. The People stated that there was no "appellate law on it." (SORA Hearing at p.7) The defense remained silent.^[FN3]

It appears that both the Second and Third Departments have addressed this issue. In a case with facts virtually identical to the case at bar, the Second Department found that the defendant had been erroneously assessed 20 points for engaging in a " continuing course of sexual misconduct'." People v. Costello, 35 AD3d 754 (2d Dept, 2006) The "victim" in Costello was "a fictitious screen name used by an undercover detective posing as a 14-year-old male, who communicated with the defendant only through Internet chat rooms and via instant messaging." The court held that "[b]ecause there was never any sexual contact' (Penal Law § 130.00[3]) between the defendant and the victim,' it follows that the defendant could not have engaged in a continuing course of conduct' as contemplated by the guidelines." The SORA: Risk Assessment Guidelines and Commentary, November 1997, at 11, states that "[f]or the purposes of these guidelines an offender has engaged in a continuing course of sexual contact when he engages in either (I) two or more acts of sexual contact, at least one of which is an act of sexual intercourse, deviate sexual intercourse, or aggravated sexual abuse, which acts are separated in time by at least 24 hours, or (ii) three or more acts of sexual contact over a period of at least two weeks."

In People v. Whalen, 22 AD3d 900, 902 (3rd Dept., 2005), the Third Department, relying on the same SORA: Risk Assessment Guidelines and Commentary as the Second Department relied on in Costello, came to a similar conclusion. In Whalen, the superior court information alleged, in part, illegal conduct with three girls under the age of 17. The defendant pleaded guilty to an attempt to promote a sexual performance by a child. In his plea allocution, the defendant admitted to "allowing a 16-year-old girl to enter his pool naked and encouraging her [*3]to masturbate." The court held that the People failed to establish by clear and convincing evidence that there was actual sexual contact between the defendant and any of his victims . . . there was insufficient evidence establishing that he had such contact on three or more occasions over a period of at least two weeks." Id. supra. See also People v. Madlin, 302 AD2d 751 (3rd Dept., 2003)(The Risk Assessment Guidelines and Commentary contemplate the commission of a specific sexual act, not an attempted commission of the specified acts.)

Both the Second and Third Departments require a finding of actual sexual contact to assess 20 points to a defendant's risk assessment for the duration of the offense conduct with the victim risk factor. Neither the Court of Appeals nor the First Department has not addressed this issue. It has long been the rule that "[t]rial courts within [the First Department] must follow the determination of the Appellate Division in another department until such time as [the First Department] or the Court of Appeals passes on the question." People v. Shakur, 215 AD2d 184, 185 (1st Dept., 1995) Thus, this court is bound to follow the Second and Third Departments and not assess the defendant 20 points for the duration of the offense conduct with the victim.

Although the People proved by clear and convincing evidence that the defendant was contacting the victim over a five-day period ^[FN4], the contacts were, for lack of a better term, "virtual contacts" through the internet and not "actual" contact as envisioned by the drafters of SORA. The People did not prove, nor could they prove based upon the facts of this case, that the defendant engaged in at least "two or more acts of sexual contact, at least one of which is an act of sexual intercourse, deviate sexual intercourse, or aggravated sexual abuse, which acts are separated in time by at least 24 hours, or . . . three or more acts of sexual contact over a period of at least two weeks." (SORA: Risk Assessment Guidelines and Commentary, November 1997, at 11) Thus, the People erroneously assessed 20 points for engaging in a "continuing course of sexual misconduct.

Risk Factor Number 14 - Supervision

The People assessed the defendant 5 points for risk factor 14 arguing that the defendant is not under "any specialized supervision." (SORA Hearing at p. 7) Although Judge Ambrecht sentenced the defendant to probation for ten years with the condition that the defendant participate in The Mustard Seed Program, the People do not believe that that is adequate supervision. The defense contends that adding the requirement that the defendant attend The Mustard Seed Program while on probation is just the kind of specialized supervision the guidelines envision. (SORA Hearing at pgs. 8-9)

For the supervision of a sex offender to constitute adequate supervision, for the purpose of risk level assessment under SORA, both the nature and length of supervision must be appropriate. People v. Marinconz, 178 Misc 2d 30, 36 (Bronx Co. 1998)

In the instant case the defendant will be under the Department of Probation's supervision for ten years. Probation may, at anytime during the defendant's probationary period, require the defendant to participate in any program the Department of Probation believes is necessary and appropriate. The probationer is required to comply, unless the sentencing court directs otherwise. See Condition No. 24 on the New York City Condition of Probation form pursuant to Criminal Procedure Law §410.10 and PL §65.10. Although The Mustard Seed Program is [*4]only a twenty-four month program, should probation determine that the defendant is in need of additional treatment, probation can order the defendant to attend another program. Should the defendant fail to comply with probation's order, he would be facing a possible prison sentence for a violation of the terms and conditions of his probation.

The Defendant is already under the supervision of Probation and participating in The Mustard Seed Program as a condition of his probation. If the defendant stops attending The Mustard Seed program without the Court changing the conditions of his probation, the Department of Probation could bring the defendant before this court on a violation of probation. In addition, should the Department of Probation determine that the defendant is in need of additional treatment, while on probation, the Department may order the defendant to attend additional programs. The defendant's sentence of Probation with the added condition that he attend a program that deals with his criminal sexual behavior is the type of supervision the SORA risk assessment contemplates and does not warrant a five point assessment.

Thus, the People have failed to prove by clear and convincing evidence that a score of 5 should be given to risk factor 14.

Departures

The People request that should this court disagree with its assessment that the defendant's risk level is 2 and place the defendant in Level1, the Court should upwardly depart and ultimately place the defendant in Level 2.

The defense contends that the defendant is a risk Level 1 offender and should this Court adopt the People's calculations that place the defendant in risk Level 2, the court should downwardly depart.

A departure from the presumptive risk level is warranted "where there exists an aggravating or mitigating factor of a kind or to a degree not taken into account by the guidelines."(citation omitted) People v. Hands, 37 AD3d 441 (2nd Dept., 2007) Neither the People nor the defense have presented clear and convincing evidence of the existence of a special circumstance to warrant a departure. People v. Dexter, 21 AD 3rd 403, 404 (2nd Dept., 2005) Although the Court is concerned about how easy it was for the defendant to use the internet to find his victim and how difficult it is for society to monitor the internet, while respecting individuals' civil rights and the right to freedom of speech, that concern does not justify and upward departure. The court sees no legitimate reason to upwardly depart from a Level 1 finding.^[FN5] [*5]

For the reasons set forth above, this court finds the defendant's total risk factor score to be 60, placing the defendant at a Level 1.

The forgoing is the decision and order of this court.

Dated:April 6, 2007

New York, New York

________________________

Laura A. Ward

Acting Supreme Court Justice