State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: August 7, 2014 517891 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

VINCENT S. IZZO,

Appellant.

________________________________

Calendar Date: June 3, 2014

Before: Peters, P.J., Garry, Rose, Egan Jr. and Clark, JJ.

__________

Adam Bevelacqua, New York City, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Damian

Sonsire of counsel), for respondent.

__________

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
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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

1 In reaching this conclusion, the Board noted that it

"conservatively scored" defendant as to those risk factors

encompassing course of sexual misconduct (risk factor 4),

substance abuse (risk factor 11), acceptance of responsibility

(risk factor 12) and conduct while confined/supervised (risk

factor 13) and expressed concern regarding defendant's violation

of his interim probation and corresponding "inability to control

himself sexually while supervised." To that end, the Board

recommended that, if the evidence presented by the People failed

to establish that an assessment of points in the cited categories

was warranted, County Court consider an upward departure to a

risk level III classification.
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convincing evidence (see Correction 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 AD3d 1117, 1118 [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

Weatherly, 41 AD3d 1238, 1238-1239 [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, ___ NY3d
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___, ___, 2014 NY Slip Op 04117, *13-14 [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 NY3d 563, 571-574 [2009]; People v

Belile, 108 AD3d 890, 890 [2013], lv denied 22 NY3d 853 [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

2 To the extent that our prior decisions have held that a

defendant's request for a downward departure from the presumptive

risk level classification must be based upon clear and convincing

evidence (see e.g. People v Mercado, 117 AD3d 1367, 1368 [2014];

People v Carter, 106 AD3d 1202, 1204 [2013]), those decisions

should not be followed in light of the Court of Appeals' recent

pronouncement in Gillotti. 
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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 AD3d 1178, 1179-1180 [2012], lv

denied 20 NY3d 851 [2012]; People v Ramirez, 53 AD3d 990, 990

[2008], lv denied 11 NY3d 710 [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," but that

defendant had engaged in "grooming" behavior; we disagree. An

example of grooming behavior provided in the guidelines is that

of a scout leader who chose the position in order to gain access

to his victims (see Sex Offender Registration Act: Risk

Assessment Guidelines and Commentary at 12 [2006]). As defendant

argues, the record does not establish this type of calculated

behavior on his part, nor was there a showing of emotional

manipulation, undue influence or other customary indicia of

grooming conduct. Instead, the record is replete with evidence – 
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including three expert evaluations – establishing that defendant

is significantly lacking in sexual and social maturity, has

difficulty in understanding and interpreting social cues,

functions socially at the level of a young teenager of roughly

the same age as his victims, and would be unable to maintain

appropriate relationships with young women of his chronological

age. Without condoning defendant's conduct, as he was fully

aware that the girls were significantly younger than he and

deliberately chose to ignore this fact, we do not find clear and

convincing evidence that he purposefully "groomed" the victims

for the sole purpose of victimizing them (see People v Pelaez,

112 AD3d 684, 684-685 [2013]; compare People v Tejada, 51 AD3d

472, 472 [2008]; see also Rebecca Williams, Ian Elliot & Anthony

Beech, Identifying Sexual Grooming Themes Used by Internet Sex

Offenders, 34 Deviant Behavior 2, 135-152 [2013]). Therefore, we

would reduce defendant's assessment by 20 points in this

category.

As thus reduced, the 75 assessed points would place

defendant squarely at the cusp of a risk level II sex offender. 

For this reason and those stated above, his request for a

downward departure from the presumptive risk level merits a most

close and careful review. Courts have the discretion to depart

from the presumptive risk level where there is "an aggravating or

mitigating factor of a kind, or to a degree, that is otherwise

not adequately taken into account by the guidelines" (Sex

Offender Registration Act: Risk Assessment Guidelines and

Commentary at 4). A three-step analysis is required: first,

evaluating, as a matter of law, whether such circumstances are

shown, second, determining whether the proponent has met his or

her burden of proof and, third, exercising discretion "by

weighing the aggravating and mitigating factors to determine

whether the totality of the circumstances warrants a departure to

avoid an over- or under-assessment of the defendant's

dangerousness and risk of sexual recidivism" (People v Gillotti,

___ NY3d ___, ___, 2014 NY Slip Op 04117, *12 [2014]). As the

majority notes, it has recently been determined that defendant's

burden of proof in seeking a downward departure is preponderance

of the evidence, rather than the higher standard of clear and

convincing evidence (id. at *13-*14). 
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This record lacks any express determination by County Court

of defendant's contention that he established the existence of

mitigating circumstances calling for a downward departure. 

Although the majority accepts an implied finding basing the

determination primarily upon defendant's probation violation, the

statute requires findings of fact and conclusions of law to be

expressly rendered (see Correction Law § 168-n [3]). In light of

this requirement, it is necessary to remit for further review and

determination of this issue (see People v Filkins, 107 AD3d 1069,

1070 [2013]; People v Burke, 68 AD3d 1175, 1177 [2009]). This is

particularly true upon the record presented here; as stated

above, there is significant evidence that, at the time of the

underlying offenses, defendant was not functioning at the level

ordinarily expected for his age. This Court has not yet applied

the "statutory rape exception" that has been well established in

the Fourth Department in cases where there is no great disparity

between the ages of the offender and the victim(s), and there are

other indicia of willing, albeit legally prohibited, sexual

conduct (see e.g. People v Goossens, 75 AD3d 1171, 1171-1172

[2010]; People v Weatherley, 41 AD3d 1238, 1238-1239 [2007]). 

These issues bear examination and review. In light of the record

evidence, we should not lightly dismiss defendant's assertion

that the circumstances underlying his crimes fail to provide any

compelling evidence of his danger of re-offense and risk to the

community.1 The majority accepts County Court's implied finding

that defendant's violation of the terms of his initial probation

may reveal a compulsive and dangerous condition; however, in

evaluating the sexual conduct of adolescents and young adults, we

must exercise the greatest level of care and scrutiny, making a

full effort to avoid imposing grave permanent consequences for

sexual misconduct when the risk of long-term recidivism is not

clearly shown. For these reasons, we would reverse and remit for

further proceedings.

Rose, J., concurs.

1 Notably, the victim involved in the probation violation

was 17 years old, and defendant met her in a college setting. 
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ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court