People v. DeDona

102 A.D.3d 58

954 N.Y.S.2d 541

2012 N.Y. Slip Op. 07647

PEOPLE of State of New York, respondent,

v.Andrew DeDONA, appellant.

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

Nov. 14, 2012.

Burke, Miele & Golden, LLP, Goshen, N.Y. (Michael K. Burke of counsel), for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Lois Cullen Valerio and Richard Longworth Hecht of counsel), for respondent.

RANDALL T. ENG, P.J., MARK C. DILLON, THOMAS A. DICKERSON, and JOHN M. LEVENTHAL, JJ.

ENG, P.J.

The conduct which resulted in the defendant's designation as a level two sex offender started in early February 2005, when he began communicating over the Internet with an undercover police officer posing as a 14–year–old girl named “Jules.” Using a webcam, the defendant transmitted images of himself masturbating to “Jules,” and arranged to meet both this fictitious girl and her supposed 12–year–old friend in New Jersey to engage in sexual activity. The defendant was arrested when he arrived at the designated meeting place, and he subsequently pleaded guilty to interstate travel with intent to engage in illicit sexual conduct with a person under 18 years of age in violation of 18 USC § 2423(b). After the defendant completed his term of imprisonment, the New York State Board of Examiners of Sex Offenders (hereinafter the Board) evaluated him for registration as a sex offender by preparing a risk assessment instrument. The risk assessment instrument assigned the defendant a total of 60 points under risk factors 3 (number of victims), 5 (age of victims), and 7 (relationship with the victims). Although the defendant's score on the risk assessment instrument fell within the range of a level one sex offender, the Board recommended an upward departure to a level two designation in view of his admitted intent to engage in sexual activity with two young girls. At the conclusion of a hearing pursuant to the Sex Offender Registration Act ( see Correction Law article 6–C; hereinafter SORA), the County Court assessed the defendant 60 points under risk factors 3, 5, and 7, and granted the People's application for an upward departure to a level two designation as recommended by the Board. On appeal, the defendant contends that a law enforcement officer posing as an underage child on the Internet is not a “victim” as contemplated by SORA, and that since he did not have physical or sexual contact with an actual person, he should not have been scored any points on the risk assessment instrument. The defendant also maintains that the People failed to demonstrate, by clear and convincing evidence, the existence of aggravating factors warranting an upward departure from his presumptive risk level, and, thus, the County Court improvidently exercised its discretion in designating him a level two sex offender. For the reasons which follow, we find that the defendant was properly assessed points under the subject risk factors despite the fact that the victims in this case were fictitious, and that the County Court providently exercised its discretion in departing from his presumptive risk level.

The events which culminated in the defendant's arrest and conviction began on February 4, 2005, when an undercover police officer in Bergen County, New Jersey, signed into an Internet chat room and received an instant message from an individual stating “like to have sex today.” This individual was later identified to be the defendant, Andrew DeDona, a then–38–year–old married man with a baby daughter. Pretending to be a 14–year–old girl from New Jersey named “Jules,” the officer began an online chat with the defendant. During this chat, the defendant asked “Jules” about her sexual history, and questioned her about her experiences with vaginal, anal, and oral sex. He told “Jules” that he lived “near” New Jersey, and expressed an interest in meeting her to engage in sexual activity, including anal sex. The defendant also asked “Jules” if she had any friends who would be willing to engage in sexual activity with him, and “Jules” replied that she had a 12–year–old friend who might be interested. The defendant described the sexual position he would prefer when having intercourse with “Jules,” and told her that he would use baby oil when they engaged in anal sex. The defendant then arranged to meet “Jules” on February 9, 2005, in the parking lot of a fast-food restaurant in Fort Lee, New Jersey.

On the day before the scheduled meeting, February 8, 2005, the defendant engaged in another Internet chat with “Jules,” in which he asked her to bring her 12–year–old friend to the meeting, so that he could engage in sexual activity with both girls. During his Internet chats with “Jules” on both February 4th and February 8th, the defendant used a webcam attached to the computer in his White Plains, New York, office to transmit images of himself exposed and masturbating to the fictitious 14–year–old girl. When the defendant arrived at the New Jersey parking lot to meet “Jules” and her friend on February 9th, he was placed under arrest.

For these acts, the defendant was charged, in a criminal complaint filed in the United States District Court for the District of New Jersey (hereinafter the District Court), with the federal offense of interstate travel with intent to engage in illicit sexual conduct with a person under 18 years of age in violation of 18 USC § 2423(b). He subsequently pleaded guilty to the charged offense, and was sentenced to a term of 37 months of imprisonment, to be followed by 15 years of supervised release. The defendant completed his term of imprisonment, and was released to federal supervision on December 29, 2009. As a condition of his supervision, the defendant was prohibited from possessing, purchasing, or otherwise obtaining access to “any form of computer board, internet, or exchange format involving computers unless specifically approved by the U.S. Probation Office.” He was also required to participate in a mental health program as directed by the U.S. Probation Office.

A few weeks after the defendant's release from prison, on February 4, 2010, the Board prepared a risk assessment instrument which assigned him a total of 60 points, presumptively indicating that he should be designated a level one offender. More specifically, the Board scored the defendant 20 points under risk factor 3 for having two victims, 20 points under risk factor 5 because his victims were between the ages of 11 and 16, and 20 points under risk factor 7 because he had established a relationship with the victims for the purpose of victimizing them. However, the Board recommended that the defendant be classified a level two sex offender, concluding that in light of his admitted intent to engage in sexual activity with two children, the community would be safer and more appropriately served by an upward departure.

At a SORA hearing conducted on April 6, 2010, the defendant's attorney advised the court that the defendant had no objection to the assessment of 60 points against him under risk factors 3, 5, and 7. However, when the People requested an upward departure as recommended by the Board, defense counsel opposed the request. Counsel argued that no departure from the defendant's presumptive risk level was warranted because he would be under federal supervision for 15 years, and the conditions of his supervision barred him from possessing computer equipment without approval, and required him to participate in counseling. Counsel further contended that the aggravating factors upon which the People and the Board relied in seeking an upward departure were actually part and parcel of the crime to which the defendant pleaded guilty. The County Court granted the People's request for an upward departure, stressing that the defendant's conduct included transmitting images of himself masturbating to someone he believed to be a 14–year–old girl, and concluding that the conduct resulting in the defendant's conviction had not been adequately taken into account by the risk assessment instrument.

The Assessment of Points for Fictitious Victims

On appeal from the County Court's order designating him a level two sex offender, the defendant challenges the assessment of points against him on the risk assessment instrument under risk factors 3, 5, and 7. He contends that a law enforcement officer posing as an underage child on the Internet is not a “victim” as contemplated by SORA, and maintains that he should not have been scored any points on the risk assessment instrument because he did not have physical or sexual contact with an actual person. Although the defendant acknowledges that he would be required to register as a sex offender even if he received a score of zero on the risk assessment instrument, he argues that receiving the lowest possible score is a factor that would strongly militate against an upward departure.

Initially, we note that the defendant raised no objection at the SORA hearing to the 60 points scored for risk factors 3, 5, and 7. Accordingly, his contention that no points should have been assessed against him for these risk factors because his victims were fictitious is unpreserved for appellate review ( see People v. Campbell, 98 A.D.3d 5, 946 N.Y.S.2d 587;People v. Velardo, 80 A.D.3d 682, 914 N.Y.S.2d 671;People v. Serrano, 61 A.D.3d 946, 947, 877 N.Y.S.2d 472;People v. Barber, 29 A.D.3d 660, 813 N.Y.S.2d 677). In any event, this contention is without merit, since, for the reasons discussed below, the risk factors at issue here—3, 5, and 7—do not require actual, physical sexual contact between the offender and victim, and assessing the defendant points for these risk factors furthers the purpose for which SORA was enacted.

We begin our analysis by noting that SORA mandates the appointment of a five-member Board comprised of “experts in the field of the behavior and treatment of sex offenders” (Correction Law § 168–l[1] ),...