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People v. Cook

New York Court of Appeals

March 30, 2017

The People & c., Respondent,
v.
William Cook, Appellant.

          Lisa Napoli, for appellant.

          Morrie I. Kleinbart, for respondent.

          STEIN, J.

         This appeal requires us to clarify the circumstances in which points can be assessed to a sex offender, for purposes of determining his or her risk level pursuant to the Sex Offender Registration Act, under risk factor 7, the category addressing the offender's relationship with the victim. Specifically, we conclude that, in the circumstances of this case, the People failed to prove that defendant established or promoted his longstanding close relationships with the child victims for the primary purpose of victimization. Because points should not have been assessed under risk factor 7, we reverse.

         I.

         Defendant was charged, in both Queens and Richmond Counties, with committing numerous sex offenses against four children, who were between the ages of five and 12 at the time of the abuse. Three of the victims were siblings, and all four of the victims were children of defendant's childhood friends. As part of a global resolution of the charges, defendant pleaded guilty to four sex offenses in satisfaction of two Queens County superior court informations, and one sex offense in satisfaction of a Richmond County indictment. In accordance with the plea agreements, the courts imposed all of the sentences to run concurrently, for an aggregate sentence of 15 years in prison, followed by 4 years of postrelease supervision.

         When defendant's release date was approaching, the Board of Examiners of Sex Offenders (the Board) prepared a case summary and risk assessment instrument (RAI), as required by the Sex Offender Registration Act (see Correction Law art 6-C [SORA]), addressing the charges and convictions in both counties. The Board recommended a score of 125 points, which presumptively falls within risk level three. As relevant here, the Board did not recommend any points under risk factor 7, which the RAI entitles "Relationship with victim." A letter submitted to the court by the Richmond County District Attorney (DA) recommended the same allocation of points as recommended by the Board, similarly not including any points under risk factor 7 (see Correction Law § 168-n [3]). At a scheduling conference held a few days before the SORA hearing, Supreme Court, Richmond County clarified that defendant was contesting the Board's assessment of points only under risk factor 6 (victim characteristics). The court also invited the parties to address risk factor 7, as well as a possible upward departure because defendant had requested a downward departure. The DA thereafter submitted a second letter, arguing that points should be assessed under risk factor 7 and, in the alternative, seeking an upward departure.

         At the SORA hearing, defendant did not contest the 105 points recommended under risk factors 2 through 5. The court disagreed with the Board and the DA on risk factor 6, so it did not assess 20 points under that factor. However, the court did assess 20 points under risk factor 7, finding clear and convincing evidence that defendant had "groomed" his victims, and had changed his relationships with them to enable him to sexually abuse them. Thus, the court assessed defendant a total of 125 points, which rendered him a presumptive risk level three sex offender [1]. The court stated that, in the event it was subsequently determined that points should not have been assessed under risk factor 7 (which would then render defendant a presumptive risk level two sex offender), there was a basis for an upward departure to risk level three, due to defendant having victimized a child with a disability, who was an especially vulnerable victim. [2]

         On defendant's appeal, the Appellate Division affirmed, concluding that Supreme Court did not err in assessing points under risk factor 7 (128 A.D.3d 927');">128 A.D.3d 927 [2d Dept 2015]). After determining that defendant did not establish his entitlement to a downward departure, the Court had no occasion to consider the People's request for an upward departure. This Court granted defendant leave to appeal (26 N.Y.3d 908');">26 N.Y.3d 908');">26 N.Y.3d 908');">26 N.Y.3d 908 [2015]).

         II.

         One of the legislature's principal goals in enacting SORA was "to protect the public from the danger of recidivism posed by sex offenders" (People v Stevens, 91 N.Y.2d 270, 275 [1998] [internal quotation marks and citation omitted]). To achieve this goal, SORA contains a detailed system of registration and community notification, with each sex offender's registration and notification obligations emanating from his or her designated risk level within a three-tiered classification scheme (see Correction Law §§ 168-h, 168-i, 168-j; People v Mingo, 12 N.Y.3d 563, 570-571 [2009]; Stevens, 91 N.Y.2d at 275; see also Correction Law §§ 168-p, 168-q). Under SORA, the Board must recommend a risk level for each sex offender nearing release from incarceration (see Correction Law § 168-l [6]), based on Guidelines the Board created at the legislature's direction (see Correction Law § 168-l [5]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]).

         When it drafted the Guidelines, the Board created the RAI, which is the tool used to assess points to sex offenders under various risk factors in an effort to determine their risk of reoffending and degree of danger to the community. The SORA court must hold a hearing, in which the People have the burden of proving, by clear and convincing evidence, the facts supporting the sought-after determinations (see Correction Law § 168-n [3]; Mingo, 12 N.Y.3d at 571). The court is not bound by the Board's recommendations but, rather, must make its own determinations based on the evidence (see People v Gillotti, 23 N.Y.3d 841, 852 [2014]). The court is also required to set forth in writing its determinations, along with the facts and legal conclusions supporting those determinations (see Correction Law § 168-n [3]).

         Only risk factor 7 is at issue here. The Guidelines provide that 20 points should be assessed under risk factor 7 if "[t]he offender's crime (i) was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization or (ii) arose in the context of a professional or avocational relationship between the offender and the victim and was an abuse of that relationship" (Guidelines, factor 7). Here, it is undisputed that the only relevant issue within this risk factor is whether defendant promoted his relationships with the victims for the primary purpose of victimization.

         This Court has noted that "[i]t is plain from the face of factor 7 that it is meant to focus on the relationship, or absence of a relationship, between the offender and his [or her] victim before the crime was committed" (People v Johnson, 11 N.Y.3d 416, 420 [2008]). The Commentary to the Guidelines explains - based on cited research and the Board's expertise "in the field of the behavior and treatment of sex offenders" (Correction Law § 168-l [1]) - that the circumstances allowing for the assessment of points under risk factor 7 raise "a heightened concern for public safety and need for community notification" (Guidelines at 12). The Commentary emphasizes that this "is not meant to minimize the seriousness of cases where the relationship is other than that of stranger or professional - e.g., familial. The need for community notification, however, is generally greater when the offender strikes at persons who do not know him well or who have sought out his professional care" (Guidelines at 12 n 8 [emphasis added]). The Guidelines further clarify the language of risk factor 7 at issue here, and provide the following examples:

         "The phrase 'established or promoted for the primary purpose of victimization' is adopted from the Act itself (Correction Law § 168-a [9]). An uncle who offends against his niece generally would not fall into this category. A scout leader who chooses his profession or vocation to gain access to victims and 'grooms' his victims before sexually abusing them would qualify" (Guidelines at 12).

         Based upon the foregoing, we must determine in this case where on the spectrum to place defendant's relationship with his victims. In his relapse prevention plan - which he was required to complete as part of his sex offender counseling and treatment program - defendant wrote that "All four victims are the children of my childhood and family friends who I grew up with since we were adolescen[ts].... we all socialized together. I spent most of my leisure time with these families and their children." The mother of the three sibling victims confirmed that defendant was a longtime family friend of the victims. She informed the police that, in order to give the parents some respite, defendant had been bringing her children to his home and watching them on weekends for approximately eight years, much of which time elapsed before the abuse was alleged to have begun. One victim was defendant's godson, who he had known since the child's birth. The record further reflects that, three to six months prior to the instant offenses, defendant was forced to move from his residence and, at the recommendation of the fourth victim's family, he rented an apartment in the same building as that victim's grandmother and became a neighbor of that victim and his family. Defendant spent significant amounts of time at that family's home, engaging in activities such as watching movies, playing games and eating together. Thus, as with the other victims, the record establishes defendant's substantial non-sexual contact with the fourth victim before he began offending against that victim. Overall, defendant socialized with his four childhood friends - the parents of the victims - and their families on a daily or weekly basis for a lengthy period of time.

         It is undisputed that defendant did not "establish[]" a relationship with these children in order to victimize them (Guidelines, factor 7). To the contrary, the record reflects that his relationships with them commenced during their infancy, due to his close and longtime friendships with their parents. The question is whether the People proved that defendant "promoted" a relationship with the children "for the primary purpose of victimization" (Guidelines, factor 7).

         The word "promote" has several common definitions, including "to advance in station, rank or honor, " and "to contribute to the growth or prosperity of" (Merriam-Webster Online Dictionary, http://www.merriam-webster. com/dictionary/promote). However, we do not look at the word "promoted" in a vacuum; we must discern its meaning in the context of the Guidelines and the related Commentary. The Commentary references the greater need for community notification when the offender chooses victims "who do not know him [or her] well" (Guidelines at 12 n 8). The Commentary also provides contrasting examples: an uncle (who would not be assessed points under risk factor 7), and a scout leader who chooses ...


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