People v. Butler

• Decision Date: 10 January 2018
• Docket Number: 2015–04741
• Citation: 69 N.Y.S.3d 66,157 A.D.3d 727
• Parties: PEOPLE of State of New York, respondent, v. Stephen J. BUTLER, Jr., appellant.
• Court: New York Supreme Court — Appellate Division

157 A.D.3d 727
69 N.Y.S.3d 66

PEOPLE of State of New York, respondent,
v.
Stephen J. BUTLER, Jr., appellant.

2015–04741

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

Submitted—September 11, 2017
January 10, 2018

69 N.Y.S.3d 67

Paul Skip Laisure, New York, N.Y. (Joshua M. Levine of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.

MARK C. DILLON, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal 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.

ORDERED that the order is affirmed, without costs or disbursements.

By 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 indictment.

On 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.

In 2014, the defendant established residence in Kings County, New York, and, as

69 N.Y.S.3d 68

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.

At a 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 girl.

The 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.

The 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.

The defendant's counsel at the SORA hearing challenged the assessment of points under risk factor 3 (number of victims,

69 N.Y.S.3d 69]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).

In an 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.

On 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[2] ; People v. Game, 131 A.D.3d 460, 13 N.Y.S.3d 900 ; People v. Patterson, 51 A.D.3d 750, 860 N.Y.S.2d 116 ). We decline to reach the defendant's sufficiency arguments in the exercise of our interest of justice jurisdiction.

The defendant also argues on appeal that his attorney was ineffective for failing to argue at the SORA hearing the insufficiency of the evidence as to risk factors 3 and 5. Under the federal ineffective assistance of counsel standard, the defendant must satisfy a two-pronged test: (1) "that counsel's representation fell below an objective standard of reasonableness," and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" ( Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; see People v. Georgiou, 38 A.D.3d 155, 160, 828 N.Y.S.2d 541 ). New York applies a somewhat different two-pronged standard. Although the first prong is identical to its federal counterpart, the second prong focuses on prejudice and is based on the fairness of the process as a whole as distinguished from the impact of counsel's errors on the outcome (see People v. Henry, 95 N.Y.2d 563, 566, 721 N.Y.S.2d 577, 744 N.E.2d 112 ; People v. Benevento, 91 N.Y.2d 708, 714, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Georgiou, 38 A.D.3d at 160–161, 828 N.Y.S.2d 541 ; People v. Brown, 300 A.D.2d 314, 315, 752 N.Y.S.2d 347 ).

Here, the defendant's SORA counsel was not ineffective for failing to argue the insufficiency of risk factor 3 evidence that there were more than two victims. We find unpersuasive the defendant's argument, as adopted by our dissenting colleague, that SORA counsel was unfamiliar with the investigator's report by virtue of arguing that in child pornography cases, victims will always be strangers not put at risk by the defendant.

In fact, counsel's argument was factually consistent with the defendant's own carefully crafted SORA testimony that he did not take the specific photographs that formed the basis for his conviction. Counsel's better familiarity with the particulars of People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 would have made no measurable difference to the outcome of the hearing. In any event, the investigator's...