People v. Izzo

• Decision Date: 07 August 2014
• Citation: 120 A.D.3d 860,2014 N.Y. Slip Op. 05679,990 N.Y.S.2d 736
• Parties: The PEOPLE of the State of New York, Respondent, v. Vincent S. IZZO, Appellant.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 860

990 N.Y.S.2d 736

2014 N.Y. Slip Op. 05679

The PEOPLE of the State of New York, Respondent,

v.Vincent S. IZZO, Appellant.

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

Aug. 7, 2014.

Adam Bevelacqua, New York City, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Damian Sonsire of counsel), for respondent.

Before: PETERS, P.J., GARRY, ROSE, EGAN JR. and CLARK, JJ.

EGAN JR., J.

Appeal from an order of the County Court of Chemung County (Hayden, J.), entered August 7, 2013, which classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act.

Defendant was charged in a 10–count indictment with, among other things, various sex crimes stemming from his contact with three underage girls. After two counts of the indictment were dismissed due to a typographical error, defendant pleaded guilty to criminal sexual act in the second degree (two counts), unlawful imprisonment in the second degree (two counts), sexual abuse in the third degree (two counts), endangering the welfare of a child and aggravated harassment in the second degree. Pursuant to the terms of the underlying plea agreement, defendant was placed on interim probation for a period of one year. Defendant thereafter admitted to violating the terms of his interim probation by being discharged from a sex offender treatment program, purchasing a computer and sending numerous emails—some of which contained explicit sexual content—to a 17–year–old girl. After two additional counts of the indictment were dismissed as duplicitous, defendant was sentenced to an aggregate prison term of two years followed by three years of postrelease supervision.

In anticipation of defendant's release from prison, the Board of Examiners of Sex Offenders completed a risk assessment instrument that presumptively classified defendant as a risk level II sex offender (105 points) in accordance with the Sex Offenders Registration Act ( see Correction Law art. 6–C [hereinafter SORA] ).¹ The parties agreed to forgo a hearing, and County Court decided the matter upon written submissions and classified defendant as a risk level II sex offender. Defendant now appeals, contending that he was improperly assessed points under risk factors 3 (number of victims) and 7 (relationship between offender and victim) and asserting that a downward departure from the presumptive risk level classification is warranted.

We affirm. Our review of the record—specifically, defendant's plea allocution and the relevant grand jury testimony—discloses sufficient factual detail to establish, by clear and convincing evidence ( seeCorrection Law § 168–n [3] ), that defendant indeed touched himself in a sexual manner while in contact with one of his victims via a webcam. We therefore conclude that the assessment of 30 points under risk factor 3 for three or more victims was entirely appropriate.

We reach a similar conclusion with respect to the assessment of 20 points under risk factor 7 (relationship between offender and victim). While it is true that the online contact between defendant and his victims precludes a finding that the victims were “strangers” for purposes of SORA ( cf. People v. Birch, 114 A.D.3d 1117, 1118, 981 N.Y.S.2d 189 [2014] ), we nonetheless are persuaded that there is clear and convincing evidence to support County Court's finding that defendant engaged in “grooming” behavior by cultivating a relationship with each of his victims for the purpose of satisfying his sexual desires. Accordingly, to our analysis, no point-based reduction in defendant's risk level classification under SORA is warranted.

As for defendant's assertion that he demonstrated his entitlement to a downward departure from the presumptive risk level classification pursuant to what he has denominated as the “statutory rape exception” under risk factor 2 ( see People v. Weatherley, 41 A.D.3d 1238, 1238–1239, 837 N.Y.S.2d 461 [2007] ), the record indeed reflects that County Court—despite authoring what otherwise was a detailed written decision in this matter—did not expressly reference defendant's request in this regard. That said, County Court did expressly reference each of the factors relied upon by defendant—the age difference between defendant and his victims, the lack of forcible compulsion, defendant's prior criminal history and his acceptance of responsibility and/or participation in therapy—elsewhere in its written decision and thoroughly discussed the conduct forming the basis for defendant's violation of probation. Accordingly, we are satisfied that County Court's findings provide an adequate basis for intelligent appellate review and, further, that defendant failed to establish, by a preponderance of the evidence ( see People v. Gillotti, ––– N.Y.3d ––––, ––––, –––N.Y.S.2d ––––, ––– N.E.2d ––––, 2014 N.Y. Slip Op. 04117, *13–14, 2014 WL 2573461 [2014] ),² that a downward departure from the presumptive risk level classification was warranted. Defendant's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.

PETERS, P.J. and CLARK, J., concur.

GARRY, J. (dissenting).

We respectfully dissent, finding merit in defendant's arguments that the record lacks clear and convincing evidence that he had three or more victims, relative to risk factor 3, and that he established relationships with the victims for the primary purpose of victimizing them, relative to risk factor 7. Further, in light of the lifelong severe consequences that necessarily result from a risk level II classification, the matter should be remitted for a full and express analysis and determination relative to defendant's request for a downward departure; this weighty decision should not be upheld upon mere implication or inference.

The People must establish the risk level classification by clear and convincing evidence. Reliable hearsay, including grand jury minutes, the presentence investigation report, a victim statement and the case summary, may be used to meet this burden ( see People v. Mingo, 12 N.Y.3d 563, 571–574, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009];People v. Belile, 108 A.D.3d 890, 890, 969 N.Y.S.2d 228 [2013],lv. denied22 N.Y.3d 853, 2013 WL 5658049 [2013] ). As relevant here, the risk assessment guidelines provide that a defendant should be assessed 20 points for risk factor 3 if there were two victims, or 30 points for three or more victims ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006] ). Here, the record lacks clear and convincing proof of prohibited sexual conduct with the third victim referenced in the indictment—as to whom defendant pleaded guilty to endangering the welfare of a child and aggravated harassment in the second degree. During the plea allocution, defendant admitted that he had engaged in conversations of a sexual nature with this victim, and the victim testified before the grand jury that defendant had contacted her by webcam video, during which time he touched himself in the area of his genitals, over his clothing. There was no physical sexual contact between the two at any time. As defendant argues, the grand jury testimony included too little factual detail to constitute clear and convincing evidence that he was masturbating. Although this might be inferred, it was not clearly revealed; viewed objectively, the testimony demonstrates nothing more than a brief swipe of defendant's hand in his genital region, accompanied by innuendo. Our precedent establishes a significantly higher standard of misconduct ( compare People v. Clavette, 96 A.D.3d 1178, 1179–1180, 946 N.Y.S.2d 310 [2012],lv. denied20 N.Y.3d 851, 2012 WL 5845583 [2012];People v. Ramirez, 53 A.D.3d 990, 990, 863 N.Y.S.2d 114 [2008],lv. denied11 N.Y.3d 710, 868 N.Y.S.2d 602, 897 N.E.2d 1087 [2008] ). Therefore, we would reduce this assessment by 10 points.

We further find that the record supports defendant's contention that he was improperly assessed 20 points under risk factor 7 because his conduct was not “directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006] ). The majority accepts County Court's finding that defendant and the victims were not “strangers...