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People v. Nethercott

Supreme Court, Westchester County

June 7, 2013

The People of the State of New York
v.
John Nethercott, Defendant.

Honorable Janet DiFiore Westchester County District Attorney Westchester County Courthouse 111 Dr. Martin Luther King, Jr. Blvd. White Plains. Attn: A.D.A. Laura Forbes

Office of John F. Ryan, Esq. The Legal Aid Society of Westchester County Attorneys for Defendant Attn: Diane Webster, Esq.

RICHARD A. MOLEA, J.

On May 17, 2013, upon the appearance of the defendant with his assigned counsel, Diane Webster, Esq., and the appearance of Assistant District Attorney Laura Forbes, this Court conducted a risk level determination proceeding under the dictates of Article 6-C of the Correction Law, otherwise known as the Sex Offender Registration Act (hereinafter, SORA). Pursuant to the requirements of Correction Law § 168-d, this proceeding was conducted in a manner consistent with the guidelines set forth in subdivision five of Correction Law § 168-l, which require the hearing court to determine the duration of the sex offender's registration obligations under Correction Law § 168-h, the degree of risk of re-offense presented by the sex offender insofar as same is relevant to the nature of the sex offender's notification obligations under Correction Law § 168-l(6), and the designation of the sex offender as either a "sexually violent offender", a "predicate sex offender" or a "sexual predator" within the meaning of Correction Law § 168-a(7). Upon completion of the instant SORA risk level determination proceeding, this Court makes the following findings of fact and conclusions of law:

Findings of Fact

Upon entry of a guilty plea under the instant indictment on May 17, 2012, the defendant was convicted before this Court of a single count of Possessing an Obscene Sexual Performance by a Child as charged under Count 1 of the instant indictment and in full satisfaction of the remaining one-hundred and thirteen counts charged thereunder. In connection with the entry of his guilty plea, the defendant allocuted to knowingly having possessed a computer file on May 19, 2011 which depicted sexual conduct by a child of less than 16 years-of-age, while knowing the content and character thereof. On September 6, 2012, the defendant was sentenced by this Court to serve a definite 1 year term of incarceration in the Westchester County Jail in conjunction with the imposition of the mandatory surcharge, DNA Databank Fee, Crime Victim Assistance Fee, Sex Offender Registration Fee, and Supplemental Sex Offender Victim Fee.

On May 1, 2013, the Board of Examiners of Sex Offenders (hereinafter, the Board) submitted a recommendation to the Court through the filing of a Risk Assessment Instrument, Case Summary, and Designation Recommendation, indicating that the defendant was a presumptive Level One Sex Offender. On May 3, 2013, the Court sent a letter to the defendant, which was copied to the Westchester County District Attorney's Office and the Legal Aid Society of Westchester County, advising him of the Court's intention to conduct a risk assessment determination proceeding, the date of the proceeding, and his rights in connection therewith. On May 6, 2013, defendant's former assigned attorney from the Legal Aid Society of Westchester County, Diane Webster, Esq., acknowledged receipt of the Court's May 3, 2013 letter and indicated that she would be representing the defendant, at his request, during the risk assessment determination proceeding to be conducted on May 17, 2013. On May 9, 2013, Assistant District Attorney Laura Forbes sent a letter and an amended RAI to the Court on behalf of the People, which was copied to Ms. Webster, recommending that the defendant be designated a Level Two Sex Offender and detailing the legal bases for their disagreement with the Board's recommendation that the defendant was a presumptive Level One Sex Offender. On May 13, 2013, Ms. Webster wrote a letter to the Court, which was copied to the People, requesting that the Court consider three annexed SORA-related court decisions and the "Scoring of Child Pornography Cases Position Statement 6/1/12" prepared by the Board (hereinafter, the Board's Position Statement).

During the course of the instant risk assessment determination proceeding, the People submitted material for the Court's consideration, including the Risk Assessment Instrument (RAI) prepared by ADA Laura Forbes which was admitted into evidence as People's Exhibit # 1, the RAI prepared by the Board which was admitted into evidence as People's Exhibit #2a, the Case Summary which was admitted into evidence as People's Exhibit # 2b, the Sex Offender Designation Form which was admitted into evidence as People's Exhibit # 2c, a copy of the instant indictment which was admitted into evidence as People's Exhibit # 3, a copy of the defendant's pre-sentence investigation report (PSR) which was admitted into evidence as People's Exhibit #4, the affidavit of Investigator Richard Corvinus which was admitted into evidence as People's Exhibit # 5, and an optical compact disc containing files depicting images of child pornography. In reliance upon their submission of the above-referenced materials and the oral argument they presented, the People submit that the defendant should be designated a Risk Level Two sex offender based upon the allocation of ninety-five (95) points to his Total Risk Factor Score. As proposed by the People, the recommended Total Risk Factor Score of ninety-five (95) points would be derived from the allocation of thirty (30) points pursuant to Risk Factor #3 "Number of Victims", thirty (30) points pursuant to RAI Risk Factor #5 "Age of victim", twenty (20) points pursuant to RAI Risk Factor #7 "Relationship with victim", and fifteen (15) points pursuant to RAI Risk Factor #14 "Supervision". With respect to RAI Risk Factor #3, the People advance their argument that thirty (30) points should be allocated to the defendant's Total Risk Factor Score thereunder in reliance upon People's Exhibit #3 in evidence, as the grand jury returned the instant indictment upon findings that the defendant knowingly possessed more than three computer files depicting sexual conduct by more than three distinct children of less than sixteen years-of-age. With respect to RAI Risk Factor #5, the People support their argument that thirty (30) points should be allocated to the defendant's Total Risk Factor Score thereunder through their reliance upon People's Exhibit #5 in evidence, which indicates that more than 50 of the image files located on the defendant's computer and hard disk drives contained images of children between 10 years of age or less engaged in sexual performances. With respect to RAI Risk Factor #7, the People support their argument that twenty (20) points should be allocated to the defendant's Total Risk Factor Score thereunder through their reliance upon People's Exhibit #4 in evidence, which indicates that the defendant did not know any of the victims depicted in the pornographic images he possessed. With respect to RAI Risk Factor #14, the People support their argument that fifteen (15) points should be allocated to the defendant's Total Risk Factor Score thereunder through their reliance upon their recognition that the defendant will not be supervised upon his release from incarceration. The People do not seek an adjudication of the defendant as either a "sexually violent offender", "predicate sex offender", or a "sexual predator", nor do they seek an upward departure from the defendant's presumptive Risk Level Two designation.

During the course of the instant risk assessment determination proceeding, the defense submitted a copy of the Board's Position Statement for the Court's consideration, although never requesting that the document be marked or moved into evidence. In reliance upon their submission of the Board's Position Statement and the oral argument they presented, the defense challenges the People's recommendation in support of a Risk Level Two designation and argues that the defendant should be designated a Risk Level One sex offender based upon the allocation of forty-five (45) points to his Total Risk Factor Score. Although the defense concedes the propriety of allocating thirty (30) points pursuant to RAI Risk Factor #5 "Age of victim", and fifteen (15) points pursuant to RAI Risk Factor #14 "Supervision", the defense disputes the propriety of allocating thirty (30) points to the defendant's Total Risk Factor Score under RAI Risk Factor #3, as well as the allocation of thirty (30) points under RAI Risk Factor #7 "Relationship with victim" in reliance upon the Board's Position Statement. In the alternative, in the event the Court were to allocate a sufficient number of points to the defendant's Total Risk Factor Score to establish that he is a presumptive Risk Level Two sex offender, the defense seeks a downward departure therefrom to a Risk Level One designation based upon the defendant's age, physical infirmity, prior military service, and the character of the defendant evinced through the letters of support which were written by several individuals on behalf of the defendant and submitted to the Court prior to the imposition of sentence in this case.

Conclusions of Law

Pursuant to Article 6-C of the Correction Law, this Court is required to determine the duration of the defendant's registration obligations upon application of the guidelines set forth in Correction Law § 168-l(5), and to determine the defendant's level of notification upon consideration of the factors set forth in Correction Law § 168-l(6). In this regard, the Board has developed the RAI to serve as a computational table which is designed to enable the courts to make the required calculations for the purpose of determining the appropriate level of notification and duration of registration applicable to those defendants who are convicted of a "sex offense" within the meaning of Correction Law § 168-a(2) or (3). The RAI allocates a point total to each of the statutory recidivism risk factors listed in Correction Law § 168-l(5) and adds the total number of points allocated to a particular sex offender to reach a Total Risk Factor Score, which provides for one of three distinct levels of notification and registration requirements, identified as Risk Level One, Risk Level Two or Risk Level Three.

Pursuant to a Risk Level One and a Risk Level Two designation, the local police receive information from the Board of Examiners of Sex Offenders (hereinafter, Board) about 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 SORA crime, and the name and location of any institution of higher learning attended by the offender. A Risk Level One sex offender is also required to register annually for a period of twenty (20) years with the Division of Criminal Justice Services (hereinafter, DCJS) by filing a written form (Correction Law §§ 168-f, 168-h) and must advise DCJS of any change of address in writing at least ten days prior to such change (Correction Law § 168-f[4]). Similarly, a Risk Level Two sex offender is required to register annually for life with the Division of Criminal Justice Services (hereinafter, DCJS) by filing a written form (Correction Law §§ 168-f, 168-h) and must advise DCJS of any change of address in writing at least ten days prior to such change (Correction Law § 168-f[4]). In addition, with respect to an offender who is assigned a Risk Level Two designation, the local police may notify "entities with vulnerable populations" of a Risk Level Two sex offender's identity, including photograph and approximate address, as well as background information about the crime including the manner of commission and type of victim, and any special conditions imposed by the sentencing court, probation department, or parole board, which may also be disseminated through the "900" telephone hotline (Correction Law § 168-p [1]) and such information is also available to the public through the internet at http://www.criminaljustice.ny.gov/nsor/index.htm.

Pursuant to a Risk Level Three designation, a sex offender is required to register annually with DCJS for life by filing a written form (Correction Law §§ 168-f, 168-h) and any change in address must be reported to DCJS in writing ten (10) days prior to such change (Correction Law § 168-f [4]). Furthermore, the Risk Level Three sex offender must personally verify his or her address every ninety (90) calendar days with the local law enforcement agency having jurisdiction in the area of his or her residence (Correction Law § 168-f). The local law enforcement agency may also disseminate all of the information available for Risk Level Three sex offenders, in addition to the exact street address. Furthermore, DCJS is required to distribute a subdirectory of all Risk Level Three sex offenders to local law enforcement agencies, where it is to be made available for public inspection through the internet at http://www.criminaljustice.ny.gov/nsor/index.htm (Correction Law § 168-q).

Upon determining the duration of the defendant's registration obligations upon application of the guidelines set forth in Correction Law § 168-l(5), the courts must also determine whether a sex offender shall be designated a sexual predator, sexually violent offender, or a predicate sex offender as defined in Correction Law § 168-a(7). Significantly, such a designation imposes a duty upon the sex offender to register annually for life with ...


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