Summary
The New York Court of Appeals reviewed a Sex Offender Registration Act risk-level determination for a defendant convicted of sex offenses involving underage girls. The Court upheld the assessment of 30 points for multiple victims, rejected the assessment of 20 points for grooming under risk factor 7, and remitted the matter for reconsideration of the defendant's downward-departure application using the corrected risk assessment score.
Topics
Practice areas
Questions Presented
- Whether the third complainant could be counted as a victim under SORA risk factor 3 even though the conduct did not constitute a SORA-level sex offense and occurred through webcam communications.
- Whether defendant was properly assessed 20 points under SORA risk factor 7 based on alleged grooming or a relationship established or promoted for the primary purpose of victimization.
- Whether the case should be remitted for reconsideration of defendant's downward-departure application because the lower courts used an incorrect risk-assessment score.
Holdings
- A person may be counted as a victim under SORA risk factor 3 even when the defendant's conduct toward that person did not constitute a SORA-level offense and involved sexual communications through a webcam rather than physical sexual contact.
- Defendant should not have been assessed 20 points under risk factor 7 because the record did not contain clear and convincing evidence that he purposefully groomed the victims for the primary purpose of victimizing them or otherwise had a qualifying relationship with them.
- Remand was required for County Court to determine the downward-departure application using the correct risk-assessment score.
Key quotations
“the conduct does not have to amount to a SORA level offense in order to be considered” (at 4)
“there was no clear and convincing evidence that he purposefully “groomed” the victims for the primary purpose of victimizing them” (at 5-6)
Factual background
Vincent Izzo, who was 21 when arrested, pleaded guilty to offenses arising from his contact with three underage girls. After violating interim probation by purchasing a computer, operating a Facebook account under an assumed name, and sending sexually explicit messages to a 17-year-old girl, he received a two-year determinate prison sentence and three years of postrelease supervision. For SORA purposes, the Board assessed 105 points, including 30 points for three or more victims and 20 points for a relationship with victims established or promoted for victimization. The Court of Appeals found sufficient evidence for the three-victim assessment but insufficient clear and convincing evidence that Izzo groomed the girls for the primary purpose of victimizing them.
Procedural history
Defendant pleaded guilty to multiple sex-related and other offenses and later violated interim probation, receiving a determinate prison sentence and postrelease supervision. Before his release, County Court classified him under the Sex Offenders Registration Act based on a risk assessment instrument score of 105, including points under risk factors 3 and 7. The Appellate Division affirmed, but the Court of Appeals reversed and remitted because the factor 7 points were unsupported and County Court had used an incorrect total score in addressing the downward-departure application.
Remand instructions
Remit to County Court, Chemung County, for further proceedings and determination of defendant's downward-departure application under People v. Gillotti using the corrected RAI score.