        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
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                                                         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
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                                                          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
