SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

223 

KA 11-02001 

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

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JAMES RIVERSO, DEFENDANT-APPELLANT.

 

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. 

 

Appeal from an order of the Supreme Court, Onondaga County (John

J. Brunetti, A.J.), entered January 5, 2011. The order determined

that defendant is a level two risk pursuant to the Sex Offender

Registration Act. 

It is hereby ORDERED that the order so appealed from is affirmed

without costs.

Memorandum: 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,

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 AD3d 1654,

1657 [Martoche and Centra, JJ., dissenting], lv denied 16 NY3d 782),

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
-2- 223 

KA 11-02001 

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 (see Correction Law § 168-l [6] 

[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

testimony that he “successfully” completed a course of sex offender

treatment and that his risk of reoffending is “low.” It is well

established that “the [risk] level suggested by the RAI is merely

presumptive and a SORA court possesses the discretion to impose a

lower or higher risk level if it concludes that the factors in the RAI

do not result in an appropriate designation” (People v Mingo, 12 NY3d

563, 568 n 2). We reject defendant’s contention that his successful

completion of a treatment program is a mitigating factor not otherwise

taken into account by the RAI, inasmuch as the RAI considers whether a

defendant has accepted responsibility for his or her sexual misconduct

by assessing points for the failure to participate in treatment and,

here, defendant has received the benefit of zero points for that

factor (see People v Douglas, 18 AD3d 967, 968, lv denied 5 NY3d 710). 

In any event, the evidence presented at the SORA hearing established

that defendant transmitted sexually explicit text messages to at least

three girls whom he coached on the soccer team; that he had sexual

contact with two of those girls in his vehicle; and that he attempted

to engage in sexual activity with two of those girls at a hotel while

attending out-of-town tournaments. Furthermore, we note that,

although defendant’s expert testified that his risk of reoffending was

reduced by up to 40% because defendant successfully completed sex

offender treatment, defendant nevertheless has a significant risk of

reoffending. We therefore conclude that a downward departure is not

warranted (cf. People v Brewer, 63 AD3d 1604, 1605; People v

Weatherley, 41 AD3d 1238, 1238-1239; People v Smith, 30 AD3d 1070,

1071). 

All concur except SCONIERS, J., who dissents and votes to modify

in accordance with the following Memorandum: I respectfully dissent

because I conclude that Supreme Court improvidently exercised its

discretion in determining that defendant is a level two risk pursuant

to the Sex Offender Registration Act ([SORA] Correction Law § 168 et

seq.). In my view, we should “ ‘substitute [our] own discretion even

in the absence of an abuse’ ” of discretion by the court, and I

therefore would modify the order by granting defendant’s request for a

downward reduction from a level two risk to a level one risk under

SORA (People v Goossens, 75 AD3d 1171, 1171; see People v Santiago, 20

AD3d 885, 885-886). While defendant’s presumptive risk level under

the risk assessment instrument was properly determined to be a level

two risk, I conclude “based on the record before [this Court] that

there are . . . mitigating factor[s] of a kind or to a degree[] not

otherwise adequately taken into account” by the Risk Assessment

Guidelines and Commentary (Santiago, 20 AD3d at 886 [internal

quotation marks omitted]; see People v Kearns, 68 AD3d 1713, 1714; Sex
-3- 223 

KA 11-02001 

Offender Registration Act: Risk Assessment Guidelines and Commentary,

at 4 [2006]).

The evidence at the SORA hearing included expert testimony from a

clinical psychologist who had provided numerous sessions of sex

offender treatment to defendant and who had administered multiple

psychological tests in evaluating defendant. Based on the expert’s

extensive treatment and evaluation of defendant, she opined within a

reasonable degree of psychological certainty that defendant posed a

low risk of reoffending. Another psychologist provided expert

testimony regarding his meetings with defendant for the purpose of

conducting a clinical interview and sexual assessment of defendant. 

Based on that assessment, he opined that defendant represented a low

risk to reoffend. Moreover, “[t]here was no allegation or evidence of

forcible compulsion” by defendant (People v Brewer, 63 AD3d 1604,

1605). Considering the foregoing and the record in its entirety, it

is apparent that “defendant’s response to [sex offender] treatment was

exceptional” (People v Martinez, 92 AD3d 930, 931) and that, as a

discretionary matter, he was entitled to a downward departure from his

presumptive risk level. 

Entered: June 15, 2012 Frances E. Cafarell

Clerk of the Court