New York Law Review

Tag: Grooming

  • People v. Cook, No. 31 (N.Y. 2017): Risk Factor 7 in SORA and “Promoting” Relationships for Victimization

    People v. Cook, No. 31 (N.Y. 2017)

    Under New York's Sex Offender Registration Act (SORA), risk factor 7, concerning the relationship between the offender and the victim, applies when the offender promotes a relationship for the primary purpose of victimization, and the People bear the burden of proving this by clear and convincing evidence.

    Summary

    The New York Court of Appeals addressed the application of Risk Factor 7 of the Sex Offender Registration Act (SORA). The defendant, William Cook, was convicted of sex offenses against children who were the offspring of his longtime friends. The court determined whether Cook "promoted" relationships with these children for the primary purpose of victimization, as defined in the SORA guidelines. The court reversed the lower court's decision to assess points under Risk Factor 7, finding that the People failed to prove by clear and convincing evidence that Cook promoted these relationships for the purpose of sexual abuse because the relationships were pre-existing. The court clarified that while the SORA system aims to assess the danger of recidivism posed by sex offenders, the evidence presented did not meet the requirements to impose the additional points under Risk Factor 7.

    Facts

    William Cook was charged with multiple sex offenses against children aged five to twelve. The victims were children of Cook’s childhood friends. As part of a plea deal, Cook pleaded guilty to several sex offenses in two counties and received concurrent prison sentences. The Board of Examiners of Sex Offenders (the Board) prepared a case summary and risk assessment instrument (RAI) under SORA, recommending a risk level of three. The Richmond County District Attorney recommended the same point allocation as the Board. At the SORA hearing, the court assessed points under risk factor 7, finding Cook had "groomed" the victims, leading to a presumptive risk level three sex offender designation. Cook appealed, arguing against the application of Risk Factor 7.

    Procedural History

    The Supreme Court, Richmond County, assessed points under risk factor 7 and designated Cook a level three sex offender. The Appellate Division affirmed the Supreme Court's decision. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the People proved by clear and convincing evidence that Cook "promoted" his relationships with the victims for the primary purpose of victimization, justifying the assessment of points under Risk Factor 7 of the SORA guidelines.

    Holding

    1. No, because Cook did not promote a relationship for the primary purpose of victimization. The record reflects long-term, pre-existing relationships with the children.

    Court's Reasoning

    The court’s reasoning focused on the interpretation of Risk Factor 7 of the SORA guidelines, which allows for 20 points if the offender “promoted” a relationship for the primary purpose of victimization. The court referenced the Commentary to the Guidelines, which clarified that the circumstances allowing for the assessment of points under risk factor 7 raise "a heightened concern for public safety and need for community notification." The court emphasized the importance of the relationship before the crime and the intent behind the offender’s actions. The court determined that, although Cook had "groomed" the victims, his pre-existing friendships with their parents meant he did not establish or promote those relationships for the primary purpose of victimization. The court differentiated between grooming a victim and promoting a relationship for purposes of victimization. The court pointed out that the Board, which had expertise in creating the guidelines, did not assess points under Risk Factor 7. The court concluded that the People failed to meet their burden of proving, by clear and convincing evidence, that Cook promoted the relationships for the primary purpose of victimization. The court also held that the eventual introduction of abuse into these relationships is not, alone, sufficient to assess points under risk factor 7 against an offender, such as defendant, who knew his victims well.

    Practical Implications

    This decision emphasizes that, in SORA proceedings, the court must focus on the specific nature and intent behind the offender’s actions regarding the victim’s relationship. In cases involving pre-existing relationships, the court must determine whether the offender actively promoted the relationship specifically to facilitate abuse, a higher standard than merely grooming or exploiting a pre-existing relationship. Attorneys handling SORA cases must carefully analyze the evidence presented to determine whether the state has met its burden of proving the offender "promoted" the relationship for the primary purpose of victimization. The court’s interpretation of the term "promoted" has an effect of limiting the instances where Risk Factor 7 is applied. The decision also indicates that courts should give substantial consideration to the Board's interpretation of its own guidelines. In cases with similar facts, this case may inform whether points should be assessed under Risk Factor 7.

  • People v. Mingo, 25 N.Y.3d 1000 (2015): Interpreting SORA Risk Factors and Downward Departures

    25 N.Y.3d 1000 (2015)

    Under the Sex Offender Registration Act (SORA), courts must apply the correct risk assessment instrument (RAI) score and consider all relevant factors when classifying offenders, including whether certain behaviors constitute “sexual conduct” and “grooming” to determine the appropriate risk level.

    Summary

    The New York Court of Appeals addressed the proper application of the Sex Offender Registration Act (SORA) in People v. Mingo. The case involved a sex offender’s risk level classification, challenging the assessment of points under risk factors 3 (number of victims) and 7 (relationship between offender and victim). The Court affirmed the lower court’s assessment of points for the number of victims but reversed the assessment for the relationship with the victims, determining there wasn’t clear and convincing evidence of ‘grooming.’ The court also addressed whether the trial court properly considered the defendant’s request for a downward departure, and remanded the case for further proceedings consistent with this interpretation.

    Facts

    Defendant pleaded guilty to multiple sex crimes involving underage girls. Following his release from prison, the court classified him under SORA. The Board of Examiners of Sex Offenders assessed the defendant as a level two risk, calculating points based on the RAI. The County Court agreed with these assessments, specifically related to the number of victims and the nature of the relationship with them, and denied the defendant’s request for a downward departure from the risk assessment. The Appellate Division affirmed, which led to the appeal to the Court of Appeals.

    Procedural History

    The defendant was charged with various sex crimes, pleaded guilty, and was sentenced to prison. Upon release, his case was returned to County Court for SORA classification. The County Court adopted the Board of Examiners’ risk assessment, which was then affirmed by the Appellate Division. The defendant appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the defendant’s actions toward a girl who was not the subject of SORA level offenses constituted a “victim” for the purpose of assessing points under risk factor 3.
    2. Whether there was clear and convincing evidence to support the assessment of points under risk factor 7, specifically the finding that the defendant engaged in “grooming” behavior.
    3. Whether the County Court’s handling of the defendant’s application for a downward departure was proper.

    Holding

    1. Yes, because the guidelines address the general term “sexual conduct,” not just SORA level offenses.
    2. No, because the expert evidence showed the defendant’s lack of maturity, and there was insufficient evidence of grooming.
    3. The lower courts used an incorrect RAI score, and thus the case was remanded to County Court for determination of the downward departure application.

    Court’s Reasoning

    The Court of Appeals analyzed the RAI guidelines. Regarding risk factor 3, the court determined that the guidelines did not explicitly limit the definition of “sexual conduct” to SORA level offenses, so defendant’s actions toward the third girl could be considered. Regarding risk factor 7, the court examined the definition of ‘grooming’ and concluded that, based on expert evidence, the defendant’s immaturity indicated that he did not engage in grooming behavior. Because the lower courts used an incorrect RAI score due to the risk factor 7 miscalculation, the court reversed the assessment of points under risk factor 7 and remanded the case for a redetermination of the downward departure application under the correct score. The court referenced that ‘The phrase ‘established or promoted for the primary purpose of victimization’ is adopted from the Act itself’.

    Practical Implications

    This case provides guidance on interpreting the specific terms in SORA’s risk factors, such as “sexual conduct” and “grooming,” and clarifies the application of the guidelines. Defense attorneys should carefully review the evidence, including any expert testimony, to challenge the assessment of points under various risk factors, especially those related to the nature of the relationship. Prosecutors must ensure sufficient evidence to support all claimed risk factors. This case reinforces the need for a correct calculation of the RAI and a proper consideration of all factors when deciding a downward departure, including a thorough review of the lower courts’ analysis, and all expert evidence presented.