People v. Riverso

Appeal from an order of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), entered January 5, 2011. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act. It is hereby ordered that the order so appealed from is affirmed without costs. Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 ei seq.). Defendant was convicted of three counts of disseminating indecent material to minors in the first degree (Penal Law § 235.22), in connection with sexually explicit text messages that he transmitted to three 16-year-old girls who played on a soccer team that he coached. We reject defendant’s contention that Supreme Court erred in assessing 20 points against him under risk factor 7, for his relationship with the victims. Pursuant to the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [1534] (2006), 20 points are assessed “if the offender’s crime[s] . . . arose in the context of a professional or avocational relationship between the offender and the victim[s] and was an abuse of such relationship [s]. Each of [those] situations is one in which there is a heightened concern for public safety and need for community notification” (Risk Assessment Guidelines and Commentary, at 12). “[A]vocational relationship” (id.) “is not defined in the risk assessment guidelines, but ‘avocation’ customarily refers to a hobby or occupation pursued outside of a person’s regular work” (People v Carlton, 78 AD3d 1654, 1657 [2010, Martoche and Centra, JJ., dissenting], lv denied 16 NY3d 782 [2011]), and we conclude that a soccer league coach falls within the risk assessment guidelines. Although we note that defendant was employed as a college soccer coach, his criminal acts were not related to his employment. In any event, reducing defendant’s score on the risk assessment instrument (RAI) by the 20 points assessed against defendant under risk factor 7 does not alter his presumptive risk level. We conclude that the court properly determined that the People proved by clear and convincing evidence that defendant has a moderate, rather than a low, risk of reoffending (see Correction Law § 168-Z [6] [b]; § 168-n [3]). We further conclude that the court did not improvidently exercise its discretion in denying defendant’s request for a downward departure to a level one risk based upon expert testimony that he “successfully” completed a course of sex offender treatment and that his risk of reoffending is “low.” It is well established that “the [risk] level suggested by the RAI is merely presumptive and a SORA court possesses the discretion to impose a lower or higher risk level if it concludes that the factors in the RAI do not result in an appropriate designation” (People v Mingo, 12 NY3d 563, 568 n 2 [2009]). We reject defendant’s contention that his successful completion of a treatment program is a mitigating factor not otherwise taken into account by the RAI, inasmuch as the RAI considers whether a defendant has accepted responsibility for his or her sexual misconduct by assessing points for the failure to participate in treatment and, here, defendant has received the benefit of zero points for that factor (see People v Douglas, 18 AD3d 967, 968 [2005], lv denied 5 NY3d 710 [2005]). In any event, the evidence presented at the SORA hearing established that defendant transmitted sexually explicit text messages to at least three girls whom he coached on the soccer team; that he had sexual contact with two of those girls in his vehicle; and that he attempted to engage in sexual activity with two of those girls at a hotel while attending out-of-town tournaments. Furthermore, we note that, although defendant’s expert testi [1535] tied that his risk of reoffending was reduced by up to 40% because defendant successfully completed sex offender treatment, defendant nevertheless has a significant risk of reoffending. We therefore conclude that a downward departure is not warranted (cf. People v Brewer, 63 AD3d 1604, 1605 [2009]; People v Weatherley, 41 AD3d 1238, 1238-1239 [2007]; People v Smith, 30 AD3d 1070, 1071 [2006]). All concur except Sconiers, J., who dissents and votes to modify in accordance with the following memorandum.