Supreme Court, Suffolk County, June 23, 2020

Timothy D. Sini, District Attorney, Riverhead (Eric Aboulafia of counsel), for plaintiff.

Ira Weissman, Central Islip, for defendant.

Sex Offender Registry, New York State Division of Criminal Justice Services, Albany, nonparty.

Defendant stands convicted after pleading guilty to attempted possessing a sexual performance by a child (Penal Law §§ 110.00, 263.16) on January 17, 2020. Defendant was sentenced to an agreed-upon disposition of six years of probation with sex offender conditions.

On June 16, 2020, this court conducted a hearing pursuant to Correction Law § 168-n to determine the defendant's appropriate level of community notification as a convicted sex offender.

In making this determination, the court has considered the following evidence: the risk assessment instrument prepared by the People dated March 30, 2020; waiver of rights and written statement by the defendant dated August 22, 2017; presentence investigation (PSI) dated March 9, 2020; tipline [*2]statement dated August 4, 2017; organized file structure; report of Dr. Robert Goldman dated September 2019; report of Dr. Joseph Friedman dated December 1, 2017; and the oral arguments of both the People and defense counsel.

The court refers to the risk assessment instrument prepared by the People dated March 30, 2020. That document assesses the defendant 30 points under risk factor 3 for number of victims, 30 points under risk factor 5 for age of victim, and 20 points under risk factor 7 for having a stranger relationship with the victim or established for purpose of victimizing. The People's instrument results in a total of 80 points which would result in a level two (moderate risk to reoffend) presumptive designation.

The defendant concurred with the People's point assessment of 80 points, which would require a level two (moderate risk to{**68 Misc 3d at 531} reoffend) designation, but urges the court to consider a downward departure to a level one.

At a hearing where the Board, People, or defendant disagree as to the offender's adjudication, the People bear the burden of proving the facts supporting the determination sought by clear and convincing evidence (see People v Hernandez, 7 Misc 3d 151, 159 [Sup Ct, Bronx County 2005]). Such a hearing is analogous to a sentencing determination in that the court making the sex offender risk assessment determination has latitude in the type and nature of evidence it may consider and is not bound by the formal rules of evidence (People v Victor R., 186 Misc 2d 28, 32 [Sup Ct, Bronx County 2000]). In making a determination, the court shall consider and review any victim's statement and any other relevant materials and evidence submitted by the sex offender and the People (see id.).

It is further noted that the stated purpose for the development of the Sex Offender Guidelines is that the Board, with the assistance of a group of experts with experience in dealing with sex offenders, "would bring academic knowledge and practical acumen to the difficult task of predicting whether a person convicted of a sex crime is likely to reoffend." (See Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 1 [2006].) The responsibility for the final assessment of factor values and the overall determination of a defendant's sex offender level lies with the court however, and while recommendations of factor assessments by the Board or the People may be useful, a court is not constrained by them (People v Jusino, 11 Misc 3d 470, 488 [Sup Ct, NY County 2005], citing People v Dorato, 291 AD2d 580 [3d Dept 2002]).

After careful consideration of all the evidence presented, the court finds that the People have met their burden of proving the facts underlying their risk assessment instrument by clear and convincing evidence as follows:

Under risk factor 3, "Number of Victims," the defendant is properly assessed 30 points for having three or more victims. This is established by the waiver of rights and written statement by the defendant dated August 22, 2017, in which the defendant wrote "I've downloaded and shared over 10,000 pictures depicting boys between the ages of 11 and 15 years old" (emphasis added). This is further established by the presentence investigation dated March 9, 2020, which indicates that when discussing the instant offense, the defendant stated that for about two months on a daily basis he downloaded child{**68 Misc 3d at 532} pornography, which he then saved on multiple folders with multiple pictures in the folders. This is further established by the organized file [*3]structure which shows at least 32 electronic folders in the defendant's computer which held child pornographic materials. This is further established by the tipline statement in which the defendant wrote "hello I want to confess that I distributed more than 9000 images of preteen hardcore softcore and nonnude images of child pornography to Magic Kingdom and many members thanked me for this a lot of members of magic kingdom download my files that I found on computer" (emphasis added).

Under risk factor 5, "Age of Victim," the defendant is properly assessed 30 points for the victims being 10 or less. This is established by stipulation of the defense to the applicability of this risk factor. It is further established by the presentence investigation dated March 9, 2020, which notes that defendant admitted "I have over 10,000 child porn pictures on my computer of boys and girls as young as two years old, some of the pictures are disgusting" (emphasis added). It is further established by the tipline statement in which the defendant wrote "hello I want to confess that I distributed more than 9000 images of preteen hardcore softcore and nonnude images of child pornography to Magic Kingdom and many members thanked me for this a lot of members of magic kingdom download my files that I found on computer" (emphasis added).

Under risk factor 7, "Relationship with Victim," the defendant is properly assessed 20 points for having a stranger relationship with the victim or established for purpose of victimizing. This is established by the waiver of rights and written statement by the defendant dated August 22, 2017, in which the defendant wrote

"I have an account on Magic Kingdom on the dark web where I search for pictures of young boys between the ages of 11 years old to 15 years old . . . I've also traded pictures of myself with a young boy on snapchat where I showed him my penis and he showed me a picture of his erect penis."

As more fully described above, the court's assessment of points based upon the risk assessment factors totals 80 points which would result in a level two (moderate risk to reoffend) presumptive risk level.{**68 Misc 3d at 533}

The People's risk assessment instrument did not request any overrides or departures. However, at the hearing, the defendant raised as two alleged potential bases for a downward departure the following mitigating factors: (1) the defendant contacted law enforcement about his own actions which exhibits such acceptance of responsibility that it indicates a reduced likelihood of reoffense; and (2) the defendant has been evaluated by multiple doctors (Dr. Friedman and Dr. Goldman) and has been diagnosed with autism spectrum disorder (ASD). They opine this condition resulted in the defendant's child pornography collection activity. Based upon his diagnosis, counsel argues that the defendant's risk of recidivism is reduced.

The Court of Appeals, in People v Gillotti (23 NY3d 841, 861 [2014]) elaborated on the three-step analytical process when evaluating an application for a departure from a presumptive risk level:

"At the first step, the court must decide whether the aggravating or mitigating circumstances alleged by a party seeking a departure are, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines . . . At the second step, the court must decide whether the party requesting the departure has [*4]adduced sufficient evidence to meet its burden of proof in establishing that the alleged aggravating or mitigating circumstances actually exist in the case at hand . . . at the third step, the court must exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant's dangerousness and risk of sexual recidivism." (People v Gillotti, 23 NY3d 841, 861 [2014] [emphasis added and citations omitted].)

Departure Basis No. 1

This court addresses the three-step process as regards the application for downward departure by the defendant on the first basis, namely that the defendant contacted law enforcement about his own actions which exhibits such acceptance of responsibility that it indicates a reduced likelihood of reoffense. The court must initially decide if the defendant has{**68 Misc 3d at 534} established, as a matter of law, the existence of an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines (see People v Vaillancourt, 112 AD3d 1375 [4th Dept 2013]; Guidelines at 4).

A brief review of the risk assessment instrument reveals that the proffered basis is already specifically taken into consideration in risk factor 12 "Acceptance of Responsibility." The "General Principles" of the Risk Assessment Guidelines and Commentary note in footnote 5: "Where the category does not apply to the offender, he should be scored 0 points." (Guidelines at 3 n 5.) Therefore, the risk assessment instrument already has taken into consideration the allegedly "extreme" acceptance of responsibility, and in doing so, has assessed zero points in that category. While defendant argues that he should receive "negative" points for his extreme acceptance of responsibility, the court finds that the alleged factor is already "of a kind, or to a degree, that is . . . adequately taken into account by the guidelines," and therefore, the proffered basis for departure fails to satisfy the first step of the analysis. (Guidelines at 4.)

Departure Basis No. 2

This court addresses the three-step process as regards the application for downward departure by the defendant on the second basis, namely that the defendant has been evaluated by multiple doctors (Dr. Friedman and Dr. Goldman) who diagnose him with autism spectrum disorder, which they opine resulted in the defendant's child pornography collection activity, and that based upon his diagnosis and the underlying offense, the defendant's risk of recidivism is reduced. The court must initially decide if the defendant has established, as a matter of law, the existence of an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines (see People v Vaillancourt, 112 AD3d 1375 [4th Dept 2013]; Guidelines at 4).

On this issue, the court begins with the "General Principles" laid out by the Board of Examiners of Sex Offenders in their Risk Assessment Guidelines and Commentary. The Board notes that the group of sex offenders is not a monolith, and that the{**68 Misc 3d at 535} assessment tools are meant to provide a particularized view of the risk posed by each offender:

"[T]he threat posed by a sex offender depends upon two factors: (i) the offender's likelihood of reoffense and (ii) the harm that would be inflicted if he did reoffend. Some offenders repeatedly reoffend, but the harm they inflict, while not insubstantial, is less grave. Others may pose a lesser likelihood of recidivism, especially if properly supervised, but the harm would be great were they to reoffend." (Guidelines at 2.)

On June 1, 2012, the Board of Examiners of Sex Offenders issued a position statement on "Scoring of Child Pornography Cases" in which the Board noted:

"[S]coring all child pornography cases for stranger relationship (and similarly in Poole scoring for three or more victims) produces an unintended, anomalous result as the majority of offenders convicted of child pornography offenses will be scored the same when there are clearly vast differences amongst these types of offenders. . . .

"The Board remains concerned about child pornography offenders, and in the majority of cases, believes that they have a sexually deviant interest in children which poses a significant risk to public safety; however, recognizes that each person convicted of a child pornography offense poses risks that are unique to that individual. These images are in essence crime scene photos of children being sexually abused, and the increased demand for these images results in further sexual victimization of children."

Approximately two months after the issuance of that position statement, Justice Conviser of the New York County Supreme Court, in People v Marrero (37 Misc 3d 429, 442-443 [Sup Ct, NY County 2012]), engaged in a thorough review of the sources which formed the basis of the position statement. Justice Conviser's conclusions regarding the position statement included:

"When compared to prior practice, the Position Statement likely will result in more accurate initial scoring determinations. The recidivism rates for child pornography offenders when compared to other sex offenders appear to be low. The Position Statement, however, in this court's view, continues{**68 Misc 3d at 536} to leave courts with no useful guidance in determining whether to depart from presumptive RAI scores in setting risk levels. . . .

"Informed sex offender risk assessments, in this court's view, require psychiatric evaluations by trained professionals who have reviewed relevant data and a defendant's scores on a validated actuarial risk assessment instrument. Such evaluations are typically not available in SORA proceedings. A review of the list of factors in the Position Statement is no substitute for a valid risk assessment. Risk level determinations under SORA are increasingly used not only for criminal justice and community notification decisions but to dispositively determine fundamental issues about people's lives, like where a sex offender is permitted to live and whom that offender can live with. Yet, in this state, our courts continue to tolerate a system which bases these increasingly important decisions on outdated and inaccurate scoring systems and court assessments which are made in most cases with clearly inadequate information. This court continues to believe that we can and must do better" (id. [emphasis added]).

Justice Conviser's concern and assessment was echoed by the Court of Appeals in People [*6]v Gillotti (23 NY3d 841, 864 [2014]), which addressed an application for downward departure with respect to a child pornography sex offender. In its assessment of step one, the Court found:

"[W]ith respect to the first step of the departure analysis, the lower courts and the parties agree that defendant Gillotti sought a downward departure based on alleged mitigating circumstances which are, as a matter of law, of a kind or to a degree not adequately considered by the guidelines, including the statistically low likelihood that a child pornography offender will commit hands-on sex offenses in the future, defendant's purported completion of an anger management program and defendant's alleged past participation in volunteer activities reflective of his empathy and good character." (Id. [emphasis added].)

The finding by the Court of Appeals that child pornography offenders have, as a matter of law, a statistically low likelihood of committing hands-on sex offenses in the future is combined in this case with the presence of a diagnosis of autism spectrum{**68 Misc 3d at 537} disorder, which, based upon the report of Dr. Goldman, also suggests a lower risk to the community.

Dr. Goldman articulates why a diagnosis of autism spectrum disorder tends to establish a lower likelihood of reoffense or danger to the community:

"ASD individuals are socially isolated and thus socially naïve, which is a factor that may predispose a person to commit crimes such as child pornography (Howling, 2004). ASD individuals may explore the internet for sexual education or sexual needs because they have a lack of sexual outlets with peers. While exploring pornography, ASD individuals may come across child pornography (Mogavero, 2016). Due to a lack of social understanding, ASD individuals may be unaware of what constitutes child pornography or other deviant sexual material (Cohen, 2011). ASD individuals also have obsessive compulsive tendencies, in which pornography-related offenses may be due to the result of repetitive or obsessive behavior (Mogavero, 2016). Furthermore, ASD individuals may believe that child pornography is legal because it is readily available on the internet (Mahoney, 2009) . . .

"The motivation for ASD individuals to acquire pornographic material is different from that of child pornography offenders in that they are not interested in sexual arousal, but rather in irrelevant details in the images of their obsession at the moment (Aral, Say, & Usta, 2018) . . .

"Specifically, obsessive compulsive tendencies, perserverative [sic] behavior, and social isolation make ASD individuals vulnerable to pornography addiction. Additionally, ASD individuals may not fully understand what they have done wrong due to social naivety (Cohen, 2011)." (Emphasis added.)

As described above, the Board of Examiners and guiding case law, as well as the submissions in this case, support the conclusion that a child pornography offender with a mental health diagnosis of autism spectrum disorder has a reduced likelihood of recidivism as compared to sex offenders in other circumstances. The court is thus satisfied that the proffered basis tends to establish a lower likelihood of reoffense or danger to the community. Nowhere in the risk assessment instrument is this proffered basis taken into account. Therefore, the [*7]defendant's{**68 Misc 3d at 538} basis for downward departure satisfies the first step of the analysis.

The court must next decide whether the defense has adduced, by a preponderance of the evidence, the existence of this mitigating factor. This is established by the reports of Dr. Friedman and Dr. Goldman, as well as by the presentence investigation dated March 9, 2020.

Dr. Friedman recounts the defendant's long mental health history and diagnoses. Specifically, the defendant had interventions beginning around age three with speech, OT, PT and counseling due to significant delays. The defendant's first psychiatric hospitalization was at age 14 in the context of multiple grandiose and paranoid delusions. The defendant's last psychiatric hospitalization was in January of 2016, due to delirium. Dr. Friedman notes that the defendant has an autism diagnosis with psychotic symptoms, has significant deficits in social-emotional reciprocity, and an abnormal social approach. The defendant is unable to express his needs or distress and acts out or mimics things he has read on the Internet as a substitution for expressing his internal needs or distress.

Dr. Friedman examined the defendant on September 9, 2017, during which the defendant expressed that his altered perception of the world, in which he believed collecting child pornography to be part of a video game experience, led to the offending behavior. Specifically, the defendant believed that he was doing work for the child pornography website and that he could achieve a higher level if he posted more pictures, comments and content. He believed that his increased involvement in the collection of child pornography would result in the website offering him a job.

Dr. Friedman offered his professional opinion on the defendant's diagnosis and its relationship to the offending behavior:

"In my opinion, Eric's ability to access the dark web is yet another demonstration of the splinter skill of using the computer. Moreover, consistent with Eric's altered perception of the world he viewed his actions as simply playing yet another computer game; I ascertained no sexual intent associated with these actions. Although Eric conveyed to me that this [is] a serious matter and is wrong, I simply observed him to be parroting the same words his parents spoke to him and to me in conversation, clearly upset and shaken by this behavior. It is my{**68 Misc 3d at 539} opinion that he remains extremely limited in his ability to understand the seriousness [sic] implications of this criminal and morally unacceptable behavior, instead he simply repeatedly expressed concerns about being put on the sex offender registry, parroting the concerns of his parents which were made in my office. However, further questioning demonstrated that Eric did not comprehend the concerns his [sic] was expressing, or why they are wrong." (Emphasis added.)

Similarly, Dr. Goldman noted the defendant's mental health issues suggest that the defendant is not likely to reoffend. Dr. Goldman noted that the defendant had been diagnosed with autism spectrum disorder and that "ASD individuals are socially isolated and thus socially naïve, which is a factor that may . . . predis[ ]pose a person to commit crimes such as child pornography." Dr. Goldman distinguished the motivations of a child pornography collector who has ASD as opposed to other offenders: "The motivation for ASD individuals to acquire pornographic material is different from that of child pornography offenders in that they are not interested in sexual arousal, but rather in irrelevant details in the images of their obsession at the moment." Dr. Goldman administered the Abel Assessment for Sexual Interest (AASI-3) [*8]examination, which measures sexual interest of a subject based upon visual reaction time. Based upon the results of this examination, Dr. Goldman noted: "These results suggest that Eric does not have sexual interests in children. His results also suggest that his rate of recidivism is fairly low to medium. Specifically, his risk of reoffending in the year is 2%, increasing to 12% after 15 years." (Emphasis added.)

Dr. Goldman finally opined that

"Eric did not view child pornography for sexual reasons. Additionally, because Eric cannot live independently, there are others to supervise his actions, which in turn will deter him from viewing pornographic images. . . . Given that Eric's thinking is very concrete and rule bound, his likelihood of recidivism is lessened. He would benefit from probation supervision and therapy that focuses on psychoeducation and social skill learning." (Emphasis added.)

The presentence investigation dated March 9, 2020, further indicates that licensed psychologist Lisa Wajsblat conducted a{**68 Misc 3d at 540} psychological assessment of the defendant and provided probation with her report. The PSI indicates that Dr. Wajsblat's report indicated that she performed assessments of the defendant's autism spectrum related symptoms via the Autism Diagnostic Interview, the Autism Diagnostic Observation Schedule and the Social Responsiveness Scale. Based upon the results of these instruments, "the defendant appeared to meet the criteria for a diagnosis of an Autism Spectrum Disorder with a mild severity."

The information from all three licensed psychologists (Dr. Friedman, Dr. Goldman, and Dr. Wajsblat), who have each examined the defendant, results in a more data-driven conclusion regarding the decreased risk presented by the defendant. These individualized assessments appear to satisfy the judicious calls made by Justice Conviser (see above), that "[i]nformed sex offender risk assessments, in this court's view, require psychiatric evaluations by trained professionals who have reviewed relevant data and a defendant's scores on a validated actuarial risk assessment instrument." (Marrero, 37 Misc 3d at 443.) In any event, they establish, by a preponderance of the evidence, the existence of the proffered basis in this case, namely that defendant has a diagnosis of autism spectrum disorder, that such diagnosis directly led to his offending behavior, and that in his particular case, the presence of such diagnosis leads to a conclusion of reduced likelihood for recidivism. Therefore, the defendant's basis for downward departure satisfies the second step of the analysis.

Finally, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism. On this issue, the court notes that the defendant reported himself to law enforcement and fully admitted his crime on the cyber-tip website on August 4, 2017, as well as in a written statement to the police on August 22, 2017. Having weighed the proffered mitigating factor and the totality of the circumstances, this court determines that the totality of the circumstances warrants a downward departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism. Therefore, the defendant's basis for downward departure satisfies the third and final step of the analysis. The defendant's application for a downward departure is granted.{**68 Misc 3d at 541}

Considered cumulatively and under the totality of the circumstances, community safety would best be served by a level one determination. Accordingly, the defendant is hereby designated a level one sex offender, with no further designation pursuant to Correction Law § 168-n (3).