SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

339 

KA 11-00548 

PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MAURICE JOHNSON, DEFENDANT-APPELLANT. 

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (John L.

Michalski, A.J.), entered January 14, 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 modified

on the law by determining that defendant is a level one risk pursuant

to the Sex Offender Registration Act and as modified the order is

affirmed without costs. 

Memorandum: On appeal from an order determining that he is a

level two risk pursuant to the Sex Offender Registration Act

(Correction Law § 168 et seq.), defendant contends that Supreme Court

erred in assessing 20 points against him under risk factor 7, for his

relationship with the victim. We agree. Points may be assessed under

risk factor 7 in the event that the underlying crime “was directed at

a stranger,” the crime was directed at a person with whom the offender

“established or promoted [a relationship] for the primary purpose of

victimization,” or the crime “arose in the context of a professional

or avocational relationship between the offender and the victim and

was an abuse of such relationship” (Sex Offender Registration Act: 

Risk Assessment Guidelines and Commentary, at 12 [2006]; see People v

Stein, 63 AD3d 99, 101). 

Here, the court determined that the victim was a stranger to

defendant. That was error. Pursuant to the presentence report,

defendant “was acquainted with [the victim] as a consequence of going

to church with [the victim’s] mother and aunt” (emphasis added), and

the Risk Assessment Guidelines and Commentary provide that “the term

‘stranger’ includes anyone who is not an actual acquaintance of the

victim” (Risk Assessment Guidelines and Commentary, at 12; see People

v Helmer, 65 AD3d 68, 70). The People nevertheless contend that the
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KA 11-00548 

court properly assessed points against defendant under risk factor 7

because they established by clear and convincing evidence that

defendant established or promoted the relationship with the victim for

the primary purpose of victimizing him. We reject that contention. 

The only evidence considered by the court was the presentence report

and risk assessment instrument (RAI), and there is nothing in those

documents indicating that defendant’s purpose in meeting or developing

a relationship with the victim was to subject him to sexual contact or

otherwise abuse him. Further, because it is undisputed that defendant

did not have a professional or avocational relationship with the

victim, we conclude that there was no basis for the court to assess

points against defendant under risk factor 7. 

As a result of the error of the court, defendant’s score on the

RAI must be reduced by 20 points, rendering him a presumptive level

one risk. The People did not seek an upward departure based on

defendant’s HIV status or his surreptitious videotaping of the sexual

acts that he engaged in with the victim. We therefore modify the

order accordingly.

All concur except SCONIERS and MARTOCHE, JJ., who dissent and vote

to affirm in the following Memorandum: We respectfully dissent and

would affirm the order determining that defendant is a level two risk

pursuant to the Sex Offender Registration Act (Correction Law § 168 et

seq.). We cannot agree with the majority that Supreme Court erred in

assessing 20 points against defendant under the risk factor for his

relationship with the victim. In our view, the People established by

clear and convincing evidence that defendant established or promoted

the relationship with the victim for the primary purpose of

victimization (see Sex Offender Registration Act: Risk Assessment

Guidelines and Commentary, at 12 [2006]). The relationship between

defendant and the victim was not familial in nature but was predatory,

based upon the age of the victim, the age difference between defendant

and the victim and the circumstances under which they met. Thus, we

conclude that the facts, as presented to the court, established that

it was “ ‘highly probable’ ” that defendant befriended the victim for

the purpose of victimizing him through the sexual relationship (People

v Dominie, 42 AD3d 589, 590). 

Entered: March 23, 2012 Frances E. Cafarell

Clerk of the Court