        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
                                 -2-                           339
                                                         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
