People v. Riverso

• Decision Date: 15 June 2012
• Citation: 96 A.D.3d 1533,947 N.Y.S.2d 250,2012 N.Y. Slip Op. 04848
• Parties: The PEOPLE of the State of New York, Respondent, v. James RIVERSO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1533
947 N.Y.S.2d 250
2012 N.Y. Slip Op. 04848

The PEOPLE of the State of New York, Respondent,
v.
James RIVERSO, Defendant–Appellant.

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

June 15, 2012.

[947 N.Y.S.2d 251]

Zimmer Law Office, PLLC, Syracuse (Kimberly M. Zimmer of Counsel), and McGraw Law Office, for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.

MEMORANDUM:

[96 A.D.3d 1533]Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.). Defendant was convicted of three counts of disseminating indecent material to minors in the first degree (Penal Law § 235.22), in connection with sexually explicit text messages that he transmitted to three 16–year–old girls who played on a soccer team that he coached. We reject defendant's contention that Supreme Court erred in assessing 20 points against him under risk factor 7, for his relationship with the victims. Pursuant to the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, [96 A.D.3d 1534]20 points are assessed “if the offender's crime[s] ... arose in the context of a professional or avocational relationship between the offender and the victim[s] and was an abuse of such relationship[s]. Each of [those] situations is one in which there is a heightened concern for public safety and need for community notification” (Risk Assessment Guidelines and Commentary, at 12 [2006] ). “[A]vocational relationship” ( id.) “is not defined in the risk assessment guidelines, but ‘avocation’ customarily refers to a hobby or occupation pursued outside of a person's regular work” ( People v. Carlton, 78 A.D.3d 1654, 1657, 911 N.Y.S.2d 752 [Martoche and Centra, JJ., dissenting], lv. denied16 N.Y.3d 782, 919 N.Y.S.2d 505, 944 N.E.2d 1145), and we conclude that a soccer league coach falls within the risk assessment guidelines. Although we note that defendant was employed as a college soccer coach, his criminal acts were not related to his employment. In any event, reducing defendant's score on the risk assessment instrument (RAI) by the 20 points assessed against defendant under risk factor 7 does not alter his presumptive risk level.

We conclude that the court properly determined that the People proved by clear and convincing evidence that defendant has a moderate, rather than a low, risk of reoffending ( seeCorrection Law § 168– l[b]; § 168–n [3] ). We further conclude that the court did not improvidently exercise its discretion in denying defendant's request for a downward departure to a level one risk based upon expert...