People v. Benton

• Decision Date: 02 July 2020
• Docket Number: 525511
• Citation: 125 N.Y.S.3d 206,185 A.D.3d 1103
• Parties: The PEOPLE of the State of New York, Respondent, v. Marvin BENTON, Appellant.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1103
125 N.Y.S.3d 206

The PEOPLE of the State of New York, Respondent,
v.
Marvin BENTON, Appellant.

525511

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: June 12, 2020
Decided and Entered: July 2, 2020

125 N.Y.S.3d 208

Stephen W. Herrick, Public Defender, Albany (Leona D. Jochnowitz of counsel), for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

185 A.D.3d 1103

Appeal from an order of the County Court of Albany County (Lynch, J.), entered August 3, 2017, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

In January 2011, defendant pleaded guilty in federal court to receipt of child pornography and was sentenced to 90 months in federal prison followed by 10 years of postrelease supervision.

185 A.D.3d 1104

Following his release, defendant took up residence in this state, where he was required to register as a sex offender (see Correction Law § 168–a[2][d][iii] ). The Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI) that assessed defendant 30 points under risk factor five (age of victims). Although this resulted in a presumptive risk level one classification, the Board sought an upward departure to a risk level two classification. The People prepared a separate RAI, wherein they sought to impose an additional 30 points for the number of victims (risk factor 3), 20 points for defendant's relationship with the victims (risk factor 7), 15 points for defendant's history of drug or alcohol abuse (risk factor 11) and 10 points for his conduct while supervised (risk factor 13). Although such scoring yielded 105 points, which presumptively classified defendant as a risk level two sex offender (105 points), the People sought an upward departure to a risk level three classification. Following a hearing, County Court found that defendant was a presumptive risk level two sex offender (based upon the 105 points reflected in the People's RAI), denied defendant's request for a downward departure, granted the People's request for an upward departure and classified defendant as a risk level three sex offender. This appeal ensued.

The People bear the burden of establishing the appropriate risk level classification by clear and convincing evidence (see People v. Phillips, 177 A.D.3d 1108, 1109, 112 N.Y.S.3d 349 [2019] ; People v. Bush, 172 A.D.3d 1827, 1828, 99 N.Y.S.3d 518 [2019] ; People v. Hinson, 170 A.D.3d 1385, 1386, 94 N.Y.S.3d 738 [2019] ) and, to that end, may rely upon the RAI and accompanying case summary, as well as the presentence investigation report and any statements provided by the victim(s) to law enforcement (see People v. George, 177 A.D.3d 1045, 1045, 113 N.Y.S.3d 360 [2019], lv denied 35 N.Y.3d 901, 2020 WL 1582297 [2020] ; People v. Liddle, 159 A.D.3d 1286, 1286, 74 N.Y.S.3d 115 [2018], lv denied

125 N.Y.S.3d 209

32 N.Y.3d 905, 2018 WL 4440629 [2018] ; People v. Saunders, 156 A.D.3d 1138, 1139, 67 N.Y.S.3d 351 [2017] ).¹

Defendant initially challenges the points assessed under risk factors 3 and 7 – citing a position statement authored by the Board and the decision rendered in People v. Gillotti , 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 (2014) for the proposition that imposing points under these

185 A.D.3d 1105

two risk factors potentially overestimates the risk that Internet child pornographers – like defendant – will...