New York Appellate Court Discusses Sex Offender Level Assessment

On November 19, 2010, the Supreme Court, Appellate Division, Fourth Department, New York heard the case of the People v. James D. C, Defendant-Appellant regarding a sex crime. The defendant wanted an order that determined him to be a Level 3 risk appealed. He says that the court made a mistake when it in set forth its findings, which is required by law. It is true that the court failed to do this, but the Court believes that the record is sufficient for it to make a decision. The court rejected the notion that the court made a mistake when it assessed 20 points against the defendant for his relationship with the victims and 25 points for using drugs or alcohol.

The defendant was employed as a bus driver of mentally disabled women at the time of the sex crimes. He said that he chose these women because he thought that they would not be capable of reporting the sex crime. Twenty points were assessed for this since the defendant had a professional relationship with them. Furthermore, the defendant began drinking alcohol when he was 11 years old and using additional drugs over the years, such as marijuana, LSD, and angel dust. He admitted that he was addicted to cocaine, marijuana, and alcohol and this evidence justified the assessment of 25 points for that risk factor.

All concurred with these findings except Martoche and Centra, JJ. Who dissented and voted to modify the findings. They said that the county court erred in assessing 20 points against the defendant under risk factor seven for his relationship with the victims. This was based on the fact that a bus driver is not a professional in the same way that someone consults a doctor, lawyer, or other person because of their skill. They disagreed with the court that the defendant and victims in this sex crime were in an avocational relationship.

They concluded that the defendant should be assessed zero points under risk factor seven, which would reduce his score to 100 points. This rendered him a Level 2 risk.

It was ordered that the appeal was affirmed without cost.