This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 31 

The People &c.,

 Respondent,

 v.

William Cook,

 Appellant.

Lisa Napoli, for appellant.

Morrie I. Kleinbart, for respondent.

STEIN, J.:

This appeal requires us to clarify the circumstances in

which points can be assessed to a sex offender, for purposes of

determining his or her risk level pursuant to the Sex Offender

Registration Act, under risk factor 7, the category addressing

the offender's relationship with the victim. Specifically, we

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conclude that, in the circumstances of this case, the People

failed to prove that defendant established or promoted his

longstanding close relationships with the child victims for the

primary purpose of victimization. Because points should not have

been assessed under risk factor 7, we reverse.

I.

Defendant was charged, in both Queens and Richmond

Counties, with committing numerous sex offenses against four

children, who were between the ages of five and 12 at the time of

the abuse. Three of the victims were siblings, and all four of

the victims were children of defendant's childhood friends. As

part of a global resolution of the charges, defendant pleaded

guilty to four sex offenses in satisfaction of two Queens County

superior court informations, and one sex offense in satisfaction

of a Richmond County indictment. In accordance with the plea

agreements, the courts imposed all of the sentences to run

concurrently, for an aggregate sentence of 15 years in prison,

followed by 4 years of postrelease supervision. 

When defendant's release date was approaching, the

Board of Examiners of Sex Offenders (the Board) prepared a case

summary and risk assessment instrument (RAI), as required by the

Sex Offender Registration Act (see Correction Law art 6-C

[SORA]), addressing the charges and convictions in both counties. 

The Board recommended a score of 125 points, which presumptively

falls within risk level three. As relevant here, the Board did

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not recommend any points under risk factor 7, which the RAI

entitles "Relationship with victim." A letter submitted to the

court by the Richmond County District Attorney (DA) recommended

the same allocation of points as recommended by the Board,

similarly not including any points under risk factor 7 (see

Correction Law § 168-n [3]). At a scheduling conference held a

few days before the SORA hearing, Supreme Court, Richmond County

clarified that defendant was contesting the Board's assessment of

points only under risk factor 6 (victim characteristics). The

court also invited the parties to address risk factor 7, as well

as a possible upward departure because defendant had requested a

downward departure. The DA thereafter submitted a second letter,

arguing that points should be assessed under risk factor 7 and,

in the alternative, seeking an upward departure. 

At the SORA hearing, defendant did not contest the 105

points recommended under risk factors 2 through 5. The court

disagreed with the Board and the DA on risk factor 6, so it did

not assess 20 points under that factor. However, the court did

assess 20 points under risk factor 7, finding clear and

convincing evidence that defendant had "groomed" his victims, and

had changed his relationships with them to enable him to sexually

abuse them. Thus, the court assessed defendant a total of 125

points, which rendered him a presumptive risk level three sex

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offender.1 The court stated that, in the event it was

subsequently determined that points should not have been assessed

under risk factor 7 (which would then render defendant a

presumptive risk level two sex offender), there was a basis for

an upward departure to risk level three, due to defendant having

victimized a child with a disability, who was an especially

vulnerable victim.2

On defendant's appeal, the Appellate Division affirmed,

concluding that Supreme Court did not err in assessing points

under risk factor 7 (128 AD3d 927 [2d Dept 2015]). After

determining that defendant did not establish his entitlement to a

downward departure, the Court had no occasion to consider the

People's request for an upward departure. This Court granted

defendant leave to appeal (26 NY3d 908 [2015]). 

II.

One of the legislature's principal goals in enacting

1 The court also designated defendant a sexually violent

offender (see Correction Law § 168-a [3]; § 168-d [3]), which

designation is not contested. 

2 Supreme Court, Queens County subsequently held a SORA

hearing addressing the same charges and convictions, after which

it also determined that defendant was a risk level three sex

offender, but on a different basis than the determination at

issue on this appeal. The Appellate Division reversed the order

of that court, and dismissed the Queens County proceeding,

concluding that only one SORA hearing should be held for each

group of "[c]urrent [o]ffense[s]" (128 AD3d 928 [2d Dept 2015]). 

This Court granted the People leave to appeal in that case (26

NY3d 908 [2015]), which we are deciding in a separate opinion

(see People v Cook [No. 30, decided herewith]). 

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SORA was "to protect the public from the danger of recidivism

posed by sex offenders" (People v Stevens, 91 NY2d 270, 275

[1998] [internal quotation marks and citation omitted]). To

achieve this goal, SORA contains a detailed system of

registration and community notification, with each sex offender's

registration and notification obligations emanating from his or

her designated risk level within a three-tiered classification

scheme (see Correction Law §§ 168-h, 168-i, 168-j; People v

Mingo, 12 NY3d 563, 570-571 [2009]; Stevens, 91 NY2d at 275; see

also Correction Law §§ 168-p, 168-q). Under SORA, the Board must

recommend a risk level for each sex offender nearing release from

incarceration (see Correction Law § 168-l [6]), based on

Guidelines the Board created at the legislature's direction (see

Correction Law § 168-l [5]; Sex Offender Registration Act: Risk

Assessment Guidelines and Commentary [2006]). 

When it drafted the Guidelines, the Board created the

RAI, which is the tool used to assess points to sex offenders

under various risk factors in an effort to determine their risk

of reoffending and degree of danger to the community. The SORA

court must hold a hearing, in which the People have the burden of

proving, by clear and convincing evidence, the facts supporting

the sought-after determinations (see Correction Law § 168-n [3];

Mingo, 12 NY3d at 571). The court is not bound by the Board's

recommendations but, rather, must make its own determinations

based on the evidence (see People v Gillotti, 23 NY3d 841, 852

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[2014]). The court is also required to set forth in writing its

determinations, along with the facts and legal conclusions

supporting those determinations (see Correction Law § 168-n [3]).

Only risk factor 7 is at issue here. The Guidelines

provide that 20 points should be assessed under risk factor 7 if

"[t]he offender's crime (i) was directed at a stranger or a

person with whom a relationship had been established or promoted

for the primary purpose of victimization or (ii) arose in the

context of a professional or avocational relationship between the

offender and the victim and was an abuse of that relationship"

(Guidelines, factor 7). Here, it is undisputed that the only

relevant issue within this risk factor is whether defendant

promoted his relationships with the victims for the primary

purpose of victimization. 

This Court has noted that "[i]t is plain from the face

of factor 7 that it is meant to focus on the relationship, or

absence of a relationship, between the offender and his [or her]

victim before the crime was committed" (People v Johnson, 11 NY3d

416, 420 [2008]). The Commentary to the Guidelines explains --

based on cited research and the Board's expertise "in the field

of the behavior and treatment of sex offenders" (Correction Law §

168-l [1]) -- 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" (Guidelines at

12). The Commentary emphasizes that this "is not meant to

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minimize the seriousness of cases where the relationship is other

than that of stranger or professional -- e.g., familial. The

need for community notification, however, is generally greater

when the offender strikes at persons who do not know him well or

who have sought out his professional care" (Guidelines at 12 n 8

[emphasis added]). The Guidelines further clarify the language

of risk factor 7 at issue here, and provide the following

examples: 

"The phrase 'established or promoted for the

primary purpose of victimization' is adopted

from the Act itself (Correction Law § 168-a

[9]). An uncle who offends against his niece

generally would not fall into this category. 

A scout leader who chooses his profession or

vocation to gain access to victims and

'grooms' his victims before sexually abusing

them would qualify" (Guidelines at 12). 

Based upon the foregoing, we must determine in this

case where on the spectrum to place defendant's relationship with

his victims. In his relapse prevention plan -- which he was

required to complete as part of his sex offender counseling and

treatment program -- defendant wrote that "All four victims are

the children of my childhood and family friends who I grew up

with since we were adolescen[ts]. . . . we all socialized

together. I spent most of my leisure time with these families

and their children." The mother of the three sibling victims

confirmed that defendant was a longtime family friend of the

victims. She informed the police that, in order to give the

parents some respite, defendant had been bringing her children to

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his home and watching them on weekends for approximately eight

years, much of which time elapsed before the abuse was alleged to

have begun. One victim was defendant's godson, who he had known

since the child's birth. The record further reflects that, three

to six months prior to the instant offenses, defendant was forced

to move from his residence and, at the recommendation of the

fourth victim's family, he rented an apartment in the same

building as that victim's grandmother and became a neighbor of

that victim and his family. Defendant spent significant amounts

of time at that family's home, engaging in activities such as

watching movies, playing games and eating together. Thus, as

with the other victims, the record establishes defendant's

substantial non-sexual contact with the fourth victim before he

began offending against that victim. Overall, defendant

socialized with his four childhood friends -- the parents of the

victims -- and their families on a daily or weekly basis for a

lengthy period of time. 

It is undisputed that defendant did not "establish[]" a

relationship with these children in order to victimize them

(Guidelines, factor 7). To the contrary, the record reflects

that his relationships with them commenced during their infancy,

due to his close and longtime friendships with their parents. 

The question is whether the People proved that defendant

"promoted" a relationship with the children "for the primary

purpose of victimization" (Guidelines, factor 7). 

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The word "promote" has several common definitions,

including "to advance in station, rank or honor," and "to

contribute to the growth or prosperity of" (Merriam–Webster

Online Dictionary, http://www.merriam-webster.

com/dictionary/promote). However, we do not look at the word

"promoted" in a vacuum; we must discern its meaning in the

context of the Guidelines and the related Commentary. The

Commentary references the greater need for community notification

when the offender chooses victims "who do not know him [or her]

well" (Guidelines at 12 n 8). The Commentary also provides

contrasting examples: an uncle (who would not be assessed points

under risk factor 7), and a scout leader who chooses that

position to gain access to and grooms his victims before sexually

abusing them (who would be assessed those points) (see Guidelines

at 12). 

In arguing that points should be assessed to defendant

under risk factor 7, the People conflate the concepts of grooming

a victim and promoting a relationship for purposes of

victimization.3 It is clear that points were not intended to be

3 It warrants mention that the instructions for defendant to

complete his relapse prevention plan, which was a requirement of

his prison-run sex offender counseling and treatment program,

directed him to describe "how [he] groomed the victim(s) of [his]

offending behavior." Those instructions specifically required

descriptions of how he physically and psychologically groomed

them, and how he groomed the social environment. To be sure, a

defendant's relapse prevention plan generally may be relied upon

in a SORA proceeding. However, courts should not blindly accept

every word or phrase contained therein, but should consider the

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assessed under that risk factor based on grooming, in and of

itself; instead, the assessment of those points should be

determined based on the nature of the relationship in which the

grooming takes place. If risk factor 7 were interpreted to

require the assessment of 20 points for every offender who

groomed a victim -- in addition to offenders who are strangers or

professionals -- then the vast majority of offenders against

child victims would be assessed those points. Such a blanket

assessment of points is inconsistent with the purpose of the

Guidelines, namely, to require enhanced community notification

where abuse occurs in more distant relationships, which indicate

an increased risk of reoffending.4

We are also unpersuaded by the People's argument that

the abuse of trust in a relationship is key to the assessment of

points under risk factor 7. The Guidelines and Commentary refer

to the abuse of trust only in the context of a professional

relationship (see Guidelines, factor 7; Guidelines at 12). 

Neither the Guidelines nor the Commentary refer to the "abuse of

context and the circumstances under which the document was

created. We note the inherent unfairness here, for instance,

where the state insisted that defendant embellish his relapse

prevention plan with particular details of his offenses --

including the implication that he must utilize the word

"grooming" and characterize his actions as such -- and then used

those particular characterizations against him.

4 Notably, at least one other risk factor is designed to

explicitly take into account the particular risk of harm to child

victims of sexual abuse (see Guidelines, factor 5).

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such relationship" (Guidelines, factor 7; Guidelines at 12) with

regard to the second category of offenders -- i.e., those who

established or promoted the relationship for the primary purpose

of offending. If abuse of trust was a fundamental consideration

under risk factor 7, the Guidelines would potentially require the

assessment of points in almost all relationships, including

familial relationships which are specifically excluded by the

Commentary and by the plain language of the Guidelines (see

Guidelines, factor 7; Guidelines at 12). However, we must apply

the Guidelines logically, as they are written, and assess points

under risk factor 7 only in situations where the need for

notification is enhanced (see Johnson, 11 NY3d at 418; Guidelines

at 12 n 8). Indeed, we have held that, to avoid anomalous

results, courts should not distort the plain meaning of the risk

factors, but must assess points as required under the Guidelines;

then, if the resulting risk level does not accurately reflect the

offender's danger to the community, the court may exercise its

discretion by granting an upward or downward departure to vary

from the presumptive risk level indicated by the risk factors

(see Johnson, 11 NY3d at 418). 

It is noteworthy that the Board did not assess any

points against defendant under risk factor 7, and the DA did not

request the assessment of such points until prompted by the court

to do so. This certainly indicates that the Board interpreted

its own Guidelines to mean that points were not intended to be

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assessed under the circumstances of this case. Given the Board's

expertise in completing RAIs (see Correction Law § 168-l [1]),

and the fact that it drafted the Guidelines at the direction of

the legislature (see Correction Law § 168-l [5]), courts should

give careful consideration to the Board's interpretations of

those Guidelines (see Guidelines at 1).5

The People bore the burden of establishing by clear and

convincing evidence that defendant promoted his relationship with

one or more of the victims for the primary purpose of sexually

abusing them (see Correction Law § 168-n [3]; Mingo, 12 NY3d at

571). That burden was not met here. The record reflects that he

had long-term, pre-existing relationships with the children,

continued those relationships in the role of a close family

friend who regularly spent substantial amounts of time with the

5 We do not suggest that the SORA court must defer to every

assessment of points by the Board in reaching its ultimate risk

level recommendation. The Board's overall risk level

determination is generally reached by adding the number of points

assessed under each risk factor (except for situations in which

an override applies or the court grants a departure). Here, for

example, the Board did not assess points under risk factor 7;

however, it recommended that defendant be designated a risk level

three sex offender based, in part, on its assessment of points

under risk factor 6. After subtracting those points -- which the

SORA court found were not appropriate, and which are not at issue

here -- the total number of points assessed by the Board would

have rendered defendant a risk level two sex offender. Unlike

the dissent (see dissenting op at 8 n 3), we discern nothing

inappropriate or inconsistent about adhering to the Board's

interpretation of its own Guidelines, while disagreeing with the

Board's assessment of points in any particular case or under any

particular risk factor. 

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children and their families, and did not begin to offend against

them until the eldest child was approximately 11 years old (see

People v Montes, 134 AD3d 1083, 1083 [2d Dept 2015], lv denied 27

NY3d 904 [2016]; see also Guidelines at 12 n 8). Therefore, the

evidence in this record does not support Supreme Court's

determination that defendant "promoted" his relationships with

these children for purposes of victimization (see Arthur Karger,

The Powers of the New York Court of Appeals §§ 13:7, 13:9 at 470-

473, 479-485 [3d ed rev 2005]), as opposed to redirecting his

longstanding close and involved relationships with them in such a

way as to allow for sexual abuse.6 

While we do not minimize the harm incurred by the

interjection of sexual abuse into already-established close

relationships, 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 (see Montes, 134 AD3d at 1083; Guidelines at 12

n 8). If the legislature had intended for everyone who sexually

offended against children to be designated risk level three, it

could have imposed a mandatory override under such circumstances;

6 Contrary to the dissent's characterization of our holding,

we do not read risk factor 7 to "impose[] a blanket ban on [its

application to] 'pre-existing' relationships" (dissenting op at

6). Rather, our interpretation of that risk factor, and our

determination that it does not apply here, are based on the

nature and extent of defendant's relationships prior to the

abuse, and on the People's failure to prove by clear and

convincing evidence that such points should be assessed. 

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it did not do so. On this record, we conclude that the lower

courts erred in assessing 20 points under risk factor 7.7

Subtracting those points results in the assessment of a total of

105 points, rendering defendant a presumptive risk level two sex

offender. 

We reject the People's invitation to review Supreme

Court's alternate finding that an upward departure to risk level

three would be appropriate. Because the Appellate Division held

that defendant was presumptively a level three sex offender, it

did not consider that alternate ground (128 AD3d at 928). 

Accordingly, the Appellate Division order should be reversed and

the case remitted to the Appellate Division for consideration of

issues raised, but not determined, on the appeal to that court. 

7 Our reference to "the lower courts" includes Supreme

Court, Richmond County and the Appellate Division, which are the

two courts that rendered determinations in this proceeding. We

do not rely on the SORA determination rendered by Supreme Court,

Queens County in a separate proceeding, in accordance with our

decision in that proceeding that the latter court should not have

held a SORA hearing (see People v Cook [No. 30, decided

herewith]). We note, however, that while the dissent approvingly

refers to the Queens County SORA court's adjudication of

defendant as a risk level three sex offender (see dissenting op

at 1, 8-9), the dissent fails to mention that such court did not

assess any points under risk factor 7, found that defendant was

presumptively a risk level two sex offender, and adjudicated him

a risk level three sex offender only by granting an upward

departure. 

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People v William Cook

No. 31 

GARCIA, J.(dissenting):

Defendant pleaded guilty to, among other things, firstdegree sodomy, second-degree rape, and first-degree sexual abuse,

for sexually abusing four children: three boys under the age of

11 and a 12-year-old girl suffering from cerebral palsy. The

Board of Examiners of Sex Offenders (the Board) and three lower

courts all designated defendant a level three sex offender,

posing a "high risk" of danger to the community. The majority

now reverses this determination and presumptively classifies

defendant as a level two, "moderate risk" offender. I dissent.

The Sex Offender Registration Act (SORA) was created

"to protect the public from sex offenders" (People v Mingo, 12

NY3d 563, 574 [2009]). To that end, pursuant to SORA, a sex

offender nearing release from incarceration receives a numerical

risk level -- ranging from level one (low risk) to level three

(high risk) -- based on a variety of risk factors set forth in

the Sex Offender Guidelines (Sex Offender Registration Act: Risk

Assessment Guidelines and Commentary [2006] [Guidelines]) created

at the direction of the Legislature (see Correction Law § 168-1). 

The sole issue in the instant appeal concerns whether the record

contains clear and convincing evidence that risk factor 7

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("Relationship Between Offender and Victim") applies. 

I agree with the majority that "we must apply the

Guidelines logically" and "as they are written" (majority op at

10). Accordingly, I cannot agree with the majority's conclusion

-- contrary to the plain language of factor 7 -- that defendant

did not promote his relationship with any of his victims simply

because those relationships were "pre-existing" (majority op at

12). 

I.

Risk factor 7 is designed to consider the

"[r]elationship between [o]ffender and [v]ictim" (Guidelines,

factor 7; see also People v Johnson, 11 NY3d 416, 420 [2008]). 

Specifically, factor 7 provides that an offender is assessed 20

points if "the offender's crime (i) was directed at a stranger or

a person with whom a relationship had been established or

promoted for the primary purpose of victimization or (ii) arose

in the context of a professional or avocational relationship

between the offender and the victim and was an abuse of such

relationship" (Guidelines, factor 7). 

By its plain language, risk factor 7 covers a broad

range of conduct. It covers, for instance, conduct that is

"directed at a stranger," as well as offenders who "established"

a relationship for the "primary purpose of victimization" (id.). 

But factor 7 is not limited to these types of new or unfamiliar

relationships; it also encompasses certain established, or pre-

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existing, relationships. For instance, under subdivision (ii),

factor 7 covers conduct involving abuse of "a professional or

avocational relationship" between offender and victim (id.). 

Even more broadly, under subdivision (i) -- the

provision at issue here -- points are assessed under factor 7 not

only where the offender "established" a new relationship with a

victim, but also where the offender "promoted" an existing

relationship for the "primary purpose of victimization" (id.). 

As the majority notes, the word "promote" has a well-known,

commonly-understood meaning (majority op at 8). Necessarily, the

factor's use of the term "promoted" presumes a pre-existing

relationship; an offender cannot "promote[]" a relationship that

does not exist (Guidelines, factor 7). To conclude otherwise

would read "promoted" out of risk factor 7 altogether. 

Yet the majority concludes that -- by virtue of his

"pre-existing relationships" with the victims -- defendant's

conduct is automatically excluded from risk factor 7 (majority op

at 12). Not only does this conclusion contravene the plain

language of the risk factor, but it undermines the precise goal

of the Guidelines: to identify offenders that present a unique

threat to public safety, whether based on "(i) the offender's

likelihood of reoffense," or "(ii) the harm that would be

inflicted if he did reoffend" (Guidelines at 2). As the

Guidelines recognize, certain categories of sex offenses -- by

their very nature -- present a high level of risk based on the

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"offender's danger to the community" (Guidelines at 1). Because

"the need for notification is enhanced" (majority op at 10-11),

these high-risk offenses will generally trigger certain risk

factors and, by design, will yield a higher total score. For

instance, an offender convicted of first-degree rape "[b]y

forcible compulsion" (Penal Law § 130.35 [1]) will -- by and

large -- trigger a provision of risk factor 1 ("Use of

Violence"), resulting in an assessment of at least 10 points (see

Guidelines, factor 1). 

Child sex offenses similarly present a uniquely grave

threat to public safety, warranting special attention under the

Guidelines. This category of sex crimes poses a risk of

extraordinary harm stemming from reoffense -- an element that is

given particular emphasis under the Guidelines: "It is important

to note that the risk level seeks to capture not only an

offender's risk of reoffense but also the harm posed by a

particular offender should he reoffend" (Guidelines at 2). The

Guidelines therefore single out "the child molester" as a highrisk offender in light of the substantial "harm that would be

inflicted" if a child molester were "to reoffend" (id.). Given

their high-risk nature, cases involving child sexual abuse will

generally trigger a number of risk factors, including, as

relevant here, the "Relationship Between Offender and Victim"

factor (Guidelines, factor 7). Accordingly, it is by design that

"the vast majority of offenders against child victims" may be

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"assessed [] points" under risk factor 7 (majority op at 10). 

II.

The record is replete with clear and convincing

evidence that defendant "promoted" his relationships with the

child victims for the primary purpose of abusing them. 

Particularly when "look[ing] to the most serious wrongdoing" --

as the Guidelines instruct (Guidelines at 6) -- defendant's

conduct falls squarely within the plain language of risk factor

7. 

As to one victim, the little girl, defendant's

confession specifies the precise moment that he began promoting

the relationship for the primary purpose of victimizing her: "I

then[,] while driving told [the victim] that I had to tell her

something that she should know. I told her that I fell in love

with her." Defendant continues: "As time went on we slowly

became closer and better friends, we would play around and tap

kiss each other. She would ask me to get this for her and do

that for her and bring this or that to her, and I would jump to

do it for her . . . Somewhere down the line kissing became more

serious." Defendant further describes how he planned a trip with

her to Florida shortly after telling the young girl he was "in

love" with her. 

As to the fourth victim, a young boy who was not

related to the other three victims, defendant describes in the

"My Instant Offenses" section of his "relapse prevention plan"

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how he promoted his relationship with this victim1: "I selected

the ten-year old male victim as he became good friends with my

[godson]. Access was made easier to this boy because he would

enjoy visiting [my godson]." In another section, defendant

continues: "My ten year old victim was beginning to be allowed to

go places with people other than his parents. I made myself

available to him as he was eager to get out, especially to spend

time with his best friend, my [godson]." 

 In lieu of examining defendant's relationship with

each victim, as required by the risk factor, the majority --

focusing on defendant's relationship with the victims' parents --

imposes a blanket ban on "pre-existing" relationships (majority

op at 12).2 For instance, with regard to the fourth victim,

1 The majority points to the "inherent unfairness" of the

People's reliance on defendant's relapse prevention plan, as it

"was a requirement of his prison-run sex offender counseling and

treatment program" (majority op at 9 n 3). But defendant was not

required to complete any section of the plan that did not apply

to him. Nor is there any suggestion that the details provided by

defendant were inaccurate or "embellish[ed]" (majority op at 9 

n 3). In any event, we need not rely solely on the statements in

defendant's relapse prevention plan, as defendant's written

confession following his arrest -- described above -- provides

ample record support to affirm.

2 The majority also remarks that "points were not intended

to be assessed" under subdivision (i) of factor 7 "based on

grooming, in and of itself" (majority op at 9). I agree. 

Rather, points are intended to be assessed where an offender

"established or promoted" a relationship "for the primary purpose

of victimization" (Guidelines, factor 7). Sometimes grooming

conduct may qualify as "promot[ing]"; other times it may not. 

However, in fairness to lower courts, this Court too has used the

term "grooming" as shorthand under this subdivision: "[T]here was

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there is no indication that defendant had much contact with the

victim whatsoever before he began promoting the relationship for

the primary purpose of facilitating the abuse. Nonetheless, the

majority somehow concludes that defendant did not "promote[]" his

relationship with this victim for the primary purpose of

victimization, noting that defendant had a close and longstanding

relationship with the victim's parents (majority op at 7-8, 11-

12). 

Pursuant to its plain language, risk factor 7 is

properly evaluated based on an individualized assessment of an

offender's conduct vis-a-vis his victim(s). On this record,

there is clear and convincing evidence that defendant "promoted"

his relationships with these victims "for the primary purpose of

victimiz[ing]" them (Guidelines, factor 7). 

III.

Given SORA's compelling purpose -- "to protect the

public from sex offenders" -- "[a]n accurate determination of the

risk a sex offender poses to the public is the paramount concern"

(Mingo, 12 NY3d at 574). By needlessly limiting the plain

language of risk factor 7, the majority inhibits SORA courts

statewide from using the Guidelines in a manner that "fully

no clear and convincing evidence that [the offender] purposefully

'groomed' the victims for the primary purpose of victimizing

them, or, aside from grooming, had any relationship with the

girls that would count for factor 7" (People v Izzo, 26 NY3d 999,

1003 [2015]). 

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capture[s] the nuances of every case" so that "the instrument

will result in the proper classification" (Guidelines at 4). 

Constrained from invoking the risk factors, SORA courts

-- tasked with reaching an assessment that accurately reflects

the threat posed by a sex offender -- are compelled, with

increasing frequency, to resort to "[t]he departure concept," an

already "common aspect of SORA litigation" (see People v Wyatt,

89 AD3d 112, 119 [2d Dept 2011]). The departure concept not only

distorts the scheme established by the Guidelines -- which advise

that departures should be "the exception" and "not the rule"

(Guidelines at 4) -- but also constrains appellate review of an

offender's risk level determination (see People v Knox, 12 NY3d

60, 70 [2009] [reviewing departure under "abuse of discretion"

standard]).

In this case, the Board classified defendant "at a

level III (High) risk" for reoffending.3 Both the Richmond

County and Queens County sentencing courts agreed and adjudicated

3 The majority purports to give deference to the Board, at

least with respect to its determination that points were not

warranted under risk factor 7 (majority op at 11), but declines

to give similar deference to the Board's ultimate assessment of

defendant as "a Level III (high) risk for re-offending." In any

event, we have repeatedly stated that the SORA court -- not the

Board -- is charged with the sole responsibility of adjudicating

a defendant's risk level "by either accepting the Board's

recommendation or rejecting that recommendation in favor of a

different risk level classification supported by the evidence

presented at the hearing" (People v Gillotti, 23 NY3d 841, 852

[2014], citing Correction Law § 168-n [2], [3]).

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defendant a level three, sexually violent offender (see People v

Cook, [No. 30, decided herewith]). In reaching its

determination, the Richmond County SORA court found clear and

convincing evidence to support factor 7 points, concluding that

"defendant brought that relationship to another level in order to

accomplish his goals with each of these children." The Appellate

Division affirmed the level three determination (128 AD3d at 927-

928). By reversing this holding and subtracting those points,

the majority presumptively classifies defendant as a "moderate

risk" offender and prevents the lower courts from imposing a

level three assessment unless an upward departure is imposed. 

IV.

Contrary to the majority's claim, "the insertion of

sexual abuse into an already-established relationship" -- by

"redirecting" a "close and involved relationship[]" so as to

"allow for sexual abuse" -- certainly may fall squarely within

the plain meaning of risk factor 7 (majority op at 12). In

rejecting a commonsense approach, and ignoring defendant's

conduct towards each victim, the majority reduces defendant to a

presumptive level two offender, apparently believing this score

to be "[a]n accurate determination of the risk" that defendant --

a convicted child sex offender -- poses to the public (Mingo, 12

NY3d at 574).

Given the plain language of risk factor 7, child

molesters may certainly be more likely to receive factor 7 points

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(see supra Section I). That, of course, is the point. 

* * * * * * * * * * * * * * * * *

Order reversed and case remitted to the Appellate Division,

Second Department, for consideration of issues raised but not

determined on appeal to that court. Opinion by Judge Stein. 

Chief Judge DiFiore and Judges Rivera, Abdus-Salaam and Wilson

concur. Judge Garcia dissents and votes to affirm in an opinion

in which Judge Fahey concurs.

Decided March 30, 2017

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