On July 3, 2014, pursuant to an agreement between the District Attorney and defense, and approved by the Court, defendant pleaded guilty to Sexual Abuse in the Second Degree (Penal Law § 130.60 [2]), a class A misdemeanor, in exchange for a sentence of a six-year term of probation. He will be required to register as a sex offender under section 168 of the Correction Law, the Sex Offender Registration Act (Correction Law article 6-C §168 [SORA]), and a final order of protection will be issued on behalf of the complainant.

Pursuant to SORA, this Court held a sex offender classification hearing on September 24, 2014 to assess the appropriate risk level (I, II or III) for the defendant. This classification will determine the appropriate duration of registration and level of notification. During the hearing, the People introduced a Risk Assessment Instrument completed by the prosecutor and a detective's summary of his interview of the complaining witness. The defense produced no evidence and instead relied on the People's exhibits during argument. In deciding this matter, the Court has also considered the defendant's guilty plea and the probation report.

The Board of Examiners of Sex Offenders (the Board) has promulgated a "Sex Offender Risk Assessment Instrument" (RAI) to be utilized in determining a "presumptive risk level". A defendant should be classified as a risk level I sex offender in cases where the risk of repeat offense is low, risk level II if the risk of repeat offense is moderate and risk level III where the risk of repeat offense is high and "there exists a threat to the public safety" (Correction Law § 168-l [6] [c]). Where the total score is 70 points or less in the RAI, the offender is presumptively level one; more than 70 points but less than 110 points, he is presumptively level two; and if 110 points or more, he is presumptively level three (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [Guidelines] at 3 [2006]).

For risk level I and II designations, the local police receive information from the Board about [*2]a sex offender residing in their jurisdiction and may provide community notification concerning the sex offender (Correction Law § 168-l [6] [a]), including the name, photograph and description of the offender, background information of the offender's crime including the manner of commission and type of victim, and any special conditions imposed by the sentencing court, probation department, or parole board, and the name and location of any institution of higher learning attended by the offender. In addition, a caller to the "900" telephone hotline can obtain confirmation that an identified individual is known to be a sex offender (id. § 168-p [1]). A risk level I sex offender is required to register annually for a period of twenty years with the Division of Criminal Justice Services (DCJS) by filing a written form (id. §§168-f; 168-h) and must advise DCJS of any change of address in writing at least ten days prior to such change (id. §168-f [4]). Similarly, a risk level II sex offender is required to register annually for life with DCJS by filing a written form (id. §§168-f;168-h) and must advise DCJS of any change of address in writing at least ten days prior to such change (id. §168-f [4]). Additionally, with respect to an offender who is assigned a risk level II designation, the offender's information is also available to the public through the Internet at http://www.criminal justice.ny.gov/nsor/index.htm.

The People seek to assess defendant 80 points on the RAI, thus classifying him presumptively as a risk level II sex offender. The People recommend that defendant be assessed 5 points for sexual contact with the victim (contact over clothing); 20 points for the duration of the offense; 20 points because the victim was between the ages of 11-16 years of age; 20 points because defendant established the relationship with the victim for the purpose of victimization or based on his professional relationship; and 15 points for defendant's history of substance abuse. Defendant has stipulated to the scores for all factors in the risk assessment instrument except factor 7, "relationship with victim" (stranger or established for the purpose of victimizing or professional relationship) (Hearing tr at 6). The Court has reviewed the undisputed factors and finds no reason to disturb the stipulation of the parties.

In establishing a defendant's risk level, "the People bear the burden of establishing the facts supporting the determination sought by clear and convincing evidence" (Correction Law §168-d [3]; People v King, 80 AD3d 681, 682 [2d Dept 2011]; People v Nelmes, 112 AD3d 683 [2d Dept 2013]). The court shall review any victim's statement and any relevant materials and evidence submitted by the defendant and the People and may consider reliable hearsay evidence submitted by either party. (Correction Law § 168-d [3].) This standard applies not only to permit the introduction of hearsay evidence but, in many instances, to permit it without the need for accompanying foundation evidence. For example, with respect to case summaries and pre-sentence reports, "[n]o foundation is necessary for their consideration at SORA hearings because such documents are created under statutory mandates and their origins and functions are well-known to SORA courts" and can be considered by the Court even if not submitted into evidence by the parties. (People v Mingo, 12 NY3d 563, 572 [2009]; People v Fredenburg, 27 AD3d 970 [3d Dept 2006]; People v Jewell, 119 AD3d 1446 [4th Dept 2014].)

The People further argued that if the Court were to assess defendant as a presumptive risk level I, an upward departure to risk level II is warranted. Defendant asserted that he was improperly assessed 20 points by the People as to risk factor 7 (relationship with victim) and, therefore, based on a score of 60 points should be adjudicated a risk level I offender. He further argued that if the Court determined defendant to be a risk level II offender, a downward departure to risk level I was [*3]warranted.

Both sides thus agree that the Court's determination as to risk factor 7 is dispositive in determining the defendant's presumptive risk level. Points may be assessed under risk factor 7 where the underlying crime was directed at a stranger or a person with whom the offender "established or promoted [a relationship] for the primary purpose of victimization," or the crime "arose in the context of a professional or avocational relationship between the offender and the victim and was an abuse of such relationship" (Guidelines at 12 [2006]; People v Stein, 63 AD3d 99, 101 [4th Dept, 2009]). The People contend that the relationship here was established for the primary purpose of victimization and that there was a professional relationship because the defendant was a police officer from whom the complainant sought help. The defendant disputes these contentions and argues that the complainant's own statement (People's exhibit 2) establishes that the complainant initiated the relationship and it existed for some time before it turned sexual.

The rationale underlying the points assessed in risk factor 7 is that "[t]he need for community notification . . . is generally greater when the offender strikes at persons who do not know him well or who have sought out his professional care" (see Guidelines, at 12 n 8). Examples given by the Guidelines include a scout leader who chooses this pursuit to gain access to victims and grooms' his victims before sexually abusing them as well as a dentist who sexually abuses his patients while they are anesthetized (id. at 12).

Of course, offenders who establish or promote a relationship with a person in order to victimize them rarely announce their intentions. Instead, in assessing whether to score points for risk factor 7, courts draw rational conclusions about offenders' intentions from the surrounding circumstances (People v Izzo, 120 AD3d 860, 862 [3d Dept 2014] [affirming factor 7 assessment where "defendant [had] engaged in grooming' behavior by cultivating a relationship with each of his victims for the purpose of satisfying his sexual desires" over the Internet]; People v Birch, 114 AD3d 1117, 1118-19 [3d Dept 2014] [finding factor 7 assessment improper where 35-year-old defendant met 16-year-old complainant while complainant was waiting tables and then communicated via text and email for five months before the underlying crime]; People v Pelaez, 112 AD3d 684, 685 [2d Dept 2013] [finding factor 7 assessment improper where 19-year-old defendant was functioning at the level of a 13-year-old and relationship started "inadvertently" when 12-year-old complainant answered defendant's call to her older sister]; People v Helmer, 65 AD3d 68, 69 [4th Dept 2009] [finding factor 7 assessment improper where defendant met complainant on-line and underage complainant claimed to be 20 years old]; People v Mollenkopf, 54 AD3d 1136, 1137 [3d Dept 2008] [affirming factor 7 assessment where even though defendant had long known the victim, he cultivated the relationship in order to sexually abuse him]; People v Romana, 35 AD3d 1241, 1242 [4th Dept 2006] [affirming factor 7 assessment where defendant courted the victim and engaged in sexual intercourse after he found out she was 13 years old]).

Similar fact-specific judgments are made with regard to whether a professional relationship existed between the offender and complainant (People v Briggs, 86 AD3d 903, 904 [3d Dept 2011] [Professional relationship found where defendant was a minister placed in complainant's family's home to provide "spiritual services"]; People v Carlton, 78 AD3d 1654 [4th Dept 2010] [Professional relationship found where defendant was bus driver for mentally disabled complainants] lv denied 16 NY3d 782; People v Cuesta, 65 AD3d 1113 [2d Dept 2009] [teacher found to have a professional relationship with victim]).

In this case, the complaining witness was a 13-year-old student who attended the same school as the defendant's children. She knew the defendant to be a parent and a New York City police officer. She recounts that around Thanksgiving Day 2012, she had posted a photograph of herself and defendant "tagged" her in the photograph (People's exhibit 2). In early December, she asked the defendant for help when she had a problem with a bully and "that is how the relationship started" (presentence report at 2). The defendant, at the time of the crime, was 37 years old. According to the defendant's statement to Probation, he had been contacted by the school because the complainant had sent pictures of herself to his son's cell phone. He further said that the complainant continued to text his son's phone and he "entertained her by texting with her" (id. at 3). Both the complainant and defendant describe sending photographs to each other. The complainant told the detective, and the Department of Probation, that these included naked photographs of both the complainant and defendant. Both the complainant and defendant describe exchanging numerous text messages. The complainant says many of them were of a sexual nature, with defendant telling her "he wanted to eat her out, suck on her body and look at her ass" (id. at 2).

The defendant admitted having sexual contact with the complainant on January 1, 2013, when he went to see her at her home to wish her Happy New Year. The complainant says that between December and May they kissed "numerous times . . . and they were tongue kisses" (People's exhibit 2). She described the January 1 incident as "he picked [her] up, put her against a wall, squeezed her buttocks and continued kissing [her]" (presentence report at 2).

The Court finds that the People have established factor 7 by clear and convincing evidence. The defendant knew the complainant to be a 13-year-old classmate of his children. He also knew that she had been sending texts to his son that had aroused concern on the part of the school. Rather than intervene as a father, around Thanksgiving, 2012, he began exchanging messages with the complainant in order to "entertain her." In essence, he worked to re-direct the complainant's attention from his son to himself. This was followed by continued correspondence for which there was no evident purpose other than to cultivate a sexual relationship. Indeed, the complainant has described the relationship as "boyfriend/girlfriend" (People's exhibit 2). After repeated correspondence, by January 1, 2013, they began a physical relationship. The defendant has admitted "sexual contact" on that date as part of his guilty plea (see Penal Law §§130.60 [2]; 130.00 [3]). The defendant's actions demonstrate a clear intention to establish an ongoing relationship with the complainant for the purpose of sexual exploitation (People v Stuart, 84 AD3d 908 [2d Dept 2008] [affirming factor 7 assessment where defendant met the 15-year-old complainant on the Internet and, after learning her age, engaged in sexually inappropriate conversation and convinced her to send nude photographs of herself]).

The defendant's status as a police officer during the time of the offense further supports this determination. The defendant knew that the complaining witness was experiencing difficulties, both in terms of her own conduct in texting with the defendant's son and in experiencing a bullying situation. Nevertheless, he purposefully pursued her during this vulnerable time. In her own way, the complaining witness can be seen as being as vulnerable in the defendant's hands as an anesthetized victim in the hands of her dentist or a mentally disabled person in the care of a bus driver (Guidelines at 12; Carlton at 1655). While the relationship here was not formed based on the defendant's professional status, that status did provide an additional mechanism for exploitation.

Even if the circumstances here are not seen as falling squarely within the heightened risks [*4]described by risk factor 7, rendering the defendant a presumptive risk level I, the Court would find the combination of circumstances here presented would justify an upward departure. "An upward departure from a presumptive risk classification is justified when an aggravating factor exists that is not otherwise adequately taken into account by the risk assessment guidelines and the court finds that such factor is supported by clear and convincing evidence" (People v O'Connell, 95 AD3d 1460 [3d Dept 2012]). "Once the People establish the existence of such a factor, the court may, in its discretion choose to upwardly depart if the factor indicates that the point score on the risk assessment has resulted in an under-assessment of the offender's actual risk to the public" (People v DeDona, 102 AD3d 58,68 [2d Dept 2012] [upward departure justified where defendant did not receive points on RAI because his victims were "fictitious"]).

Here, the People argue that an upward departure would be justified based on "the type of relationship that this defendant had with this victim and his position of authority" (SORA hearing tr at17). Defense counsel contends that an upward departure is unwarranted since the complainant initiated the communication, defendant and the complainant corresponded without inappropriate conduct for several weeks after the initial contact, and the defendant has resigned from the police department (id. at 23 and 24).

The Court concludes that the upward departure is justified based on the circumstances present in this case. The RAI was not designed to address every possible factual scenario. The drafters have not specifically accounted for a situation where a defendant, either on his own (by tagging complainant's photograph) or posing as his own son, establishes contact with a young girl who is experiencing issues with boundaries and appropriate behavior, and then within little more than a month, turns their relationship into an ongoing sexual one. Yet, the defendant's conduct here displays the type of predatory behavior (and enhanced risk) that the guidelines seek to capture. This risk is compounded by the defendant's exploitation of the trust and confidence many feel for law enforcement. The fact that he no longer is a member of the Police Department matters little. When seeking his advice, the complainant did not check his actual credentials. Given the deviousness with which he operated here, there exists a risk that he would draw upon his law enforcement credibility in the future, whether or not he is a member of law enforcement at the time.

The defendant's application for a downward departure, is denied. "[A] court may not [downwardly] depart from the presumptive risk level unless it concludes that there exists . . . [a] mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines" (Guidelines at 4). The defendant, as the proponent of the application for a downward departure, has the burden of establishing the existence of this mitigating factor by a preponderance of the evidence; satisfaction of this burden is the threshold condition to the court's exercise of discretion to grant or deny the application for downward departure, while failure to meet the burden requires denial of the application. (People v Gillotti, 23 NY3d 841[2014].) Here, defendant has not presented a sufficient basis to justify such a departure.

Accordingly, based on a finding of 80 points on the RAI, the defendant is determined to be a risk level II offender.

This constitutes the decision and order of the Court.