Skip Laisure, New York, NY (Joshua M. Levine of counsel), for
Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove,
Morgan J. Dennehy, and Daniel Berman of counsel), for
C. DILLON, J.P. BETSY BARROS FRANCESCA E. CONNOLLY ANGELA G.
DECISION & ORDER
by the defendant from an order of the Supreme Court, Kings
County (Michael J. Brennan, J.), dated March 25, 2015, which,
after a hearing, designated him a level three sex offender
pursuant to Correction Law article 6-C.
that the order is affirmed, without costs or disbursements.
indictment in Gwinnett County, Georgia, dated September 6,
2001, the defendant was accused of violating Official Code of
Georgia Annotated (hereinafter O.C.G.A.) § 16-12-100,
which prohibits the knowing production of sexually explicit
photographs depicting children under the age of 18. The
indictment arose out of the defendant's alleged conduct
of photographing female minors in provocative or seductive
poses and in various stages of partial undress. Specifically,
the defendant dropped off 99 rolls of film at a Kroger store
for developing, insisting upon only receiving negatives
rather than prints. When store employees accidentally
developed some prints and saw the images depicted on them,
they reported the matter to the police, which led to the
January 27, 2003, the defendant entered a plea of guilty to
one count of sexual exploitation of children (O.C.G.A. §
16-12-100). He was sentenced to 5 years of incarceration and
15 years of probation.
2014, the defendant established residence in Kings County,
New York, and, as required, registered as a sex offender.
Under the risk assessment instrument (hereinafter RAI), the
defendant was assessed a total of 115 points, which is a
presumptive level three designation.
hearing pursuant to the Sex Offender Registration Act
(see Correction Law § 168 et seq.;
hereinafter SORA), the People's evidence included an
investigator's report prepared by the detective assigned
to the criminal case. The investigator's report indicated
that when the defendant dropped off the 99 rolls of film at
Kroger, he gave a false name, "Steve Holbrook, "
and a false telephone number, and said that the store need
not call him as he would pick up the negatives on his own
when the job was done. The report further indicated that when
the detective first spoke with the defendant, the defendant
admitted that he photographed girls at several locations in
the metro Atlanta area, which included 10 or 15 of the rolls
of film that he had picked up at Kroger. At another time
during the interview, the defendant said that he had found
the 99 rolls of film that were from his past and had them
developed to see what was on them. The defendant admitted to
the existence of some additional "inappropriate"
photographs inside his automobile and consented to its
search. The search of the automobile resulted in the
discovery of negatives of girls in provocative poses. In
addition, the automobile's trunk contained "fabric,
needles and thread used for making very small thong type
underwear, " as well as "skimpy outfits, "
bathing suits, and dresses, including a multicolored dress
with heart shapes matching a dress worn by a girl in lewd
positions in one of the Kroger rolls of film. During his
interview, the defendant admitted to having been present when
the photographs were taken of the girl in the multicolored
dress with hearts but denied being the actual photographer.
The detective spoke with a small number of girls whose
identities could be ascertained. He also spoke to their
mothers. One of the girls recounted a photo shoot where the
defendant was described as pulling the girl's bathing
suit bottoms "up her butt crack'" in a way that
made her feel uncomfortable, and that the defendant had
"asked her to show some of her butt.'" In the
same investigator's report, the detective stated that the
photographs from Kroger included those "of a young white
female approximately 8-10 years of age, " and that one
of the photographs showed the defendant with his arm around a
defendant testified at the SORA hearing that he came into
possession of the film by mail from a man in Texas for whom
he was going to build a website. On cross-examination, the
defendant testified that he had photographed girls of all
ages at several Atlanta area locations, including girls under
the age of 10, but denied that those photographs were among
the ones for which he was convicted.
defendant's SORA testimony is at odds with statements the
defendant allegedly made to the detective-that he took the
photographs on 10 or 15 of the Kroger rolls, and that he had
"found" the 99 rolls. The defendant's testimony
did not reconcile with the multicolored dress in his car
matching that which was worn by a girl in one of the Kroger
rolls, nor with the Kroger photograph that depicted himself
with an arm around a girl. During his testimony, the
defendant did not contest the use of a false name and phone
number at Kroger, his insistence that Kroger develop
negatives only, and his desire to pick up the negatives
without being called.
defendant's counsel at the SORA hearing challenged the
assessment of points under risk factor 3 (number of victims,
three or more) on the ground that in child pornography cases,
this factor has a tendency to produce an over-assessment of
risk, and risk factor 7 (relationship with the victims) on
the ground that there was no direct contact between the
defendant and the victims. Defense counsel did not challenge
the assessment of points under risk factor 5 (age of victim,
10 or less).
order dated March 25, 2015, the Supreme Court determined that
the People had presented clear and convincing evidence
supporting the assessment of 115 points, which qualified the
defendant as a level three sex offender. The court declined
to grant a downward departure.
appeal, the defendant argues that the evidence against him
was insufficient on the specific ground that the
investigator's report failed to establish risk factors 3
and 5. However, at the SORA hearing, the defendant made no
such arguments, rendering them unpreserved for appellate
review (see CPL 470.05; People v Game,131 A.D.3d 460; People v Patterson,51 A.D.3d 750).
We decline to ...