                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 7, 2014                    517891
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

VINCENT S. IZZO,
                    Appellant.
________________________________


Calendar Date:   June 3, 2014

Before:   Peters, P.J., Garry, Rose, Egan Jr. and Clark, JJ.

                             __________


     Adam Bevelacqua, New York City, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira (Damian
Sonsire of counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from an order of the County Court of Chemung County
(Hayden, J.), entered August 7, 2013, which classified defendant
as a risk level II sex offender pursuant to the Sex Offender
Registration Act.

      Defendant was charged in a 10-count indictment with, among
other things, various sex crimes stemming from his contact with
three underage girls. After two counts of the indictment were
dismissed due to a typographical error, defendant pleaded guilty
to criminal sexual act in the second degree (two counts),
unlawful imprisonment in the second degree (two counts), sexual
abuse in the third degree (two counts), endangering the welfare
of a child and aggravated harassment in the second degree.
Pursuant to the terms of the underlying plea agreement, defendant
                              -2-                517891

was placed on interim probation for a period of one year.
Defendant thereafter admitted to violating the terms of his
interim probation by being discharged from a sex offender
treatment program, purchasing a computer and sending numerous
emails – some of which contained explicit sexual content – to a
17-year-old girl. After two additional counts of the indictment
were dismissed as duplicitous, defendant was sentenced to an
aggregate prison term of two years followed by three years of
postrelease supervision.

      In anticipation of defendant's release from prison, the
Board of Examiners of Sex Offenders completed a risk assessment
instrument that presumptively classified defendant as a risk
level II sex offender (105 points) in accordance with the Sex
Offenders Registration Act (see Correction Law art 6-C
[hereinafter SORA]).1 The parties agreed to forgo a hearing, and
County Court decided the matter upon written submissions and
classified defendant as a risk level II sex offender. Defendant
now appeals, contending that he was improperly assessed points
under risk factors 3 (number of victims) and 7 (relationship
between offender and victim) and asserting that a downward
departure from the presumptive risk level classification is
warranted.

      We affirm. Our review of the record – specifically,
defendant's plea allocution and the relevant grand jury testimony
– discloses sufficient factual detail to establish, by clear and


    1
        In reaching this conclusion, the Board noted that it
"conservatively scored" defendant as to those risk factors
encompassing course of sexual misconduct (risk factor 4),
substance abuse (risk factor 11), acceptance of responsibility
(risk factor 12) and conduct while confined/supervised (risk
factor 13) and expressed concern regarding defendant's violation
of his interim probation and corresponding "inability to control
himself sexually while supervised." To that end, the Board
recommended that, if the evidence presented by the People failed
to establish that an assessment of points in the cited categories
was warranted, County Court consider an upward departure to a
risk level III classification.
                              -3-                517891

convincing evidence (see Correction Law § 168-n [3]), that
defendant indeed touched himself in a sexual manner while in
contact with one of his victims via a webcam. We therefore
conclude that the assessment of 30 points under risk factor 3 for
three or more victims was entirely appropriate.

      We reach a similar conclusion with respect to the
assessment of 20 points under risk factor 7 (relationship between
offender and victim). While it is true that the online contact
between defendant and his victims precludes a finding that the
victims were "strangers" for purposes of SORA (cf. People v
Birch, 114 AD3d 1117, 1118 [2014]), we nonetheless are persuaded
that there is clear and convincing evidence to support County
Court's finding that defendant engaged in "grooming" behavior by
cultivating a relationship with each of his victims for the
purpose of satisfying his sexual desires. Accordingly, to our
analysis, no point-based reduction in defendant's risk level
classification under SORA is warranted.

      As for defendant's assertion that he demonstrated his
entitlement to a downward departure from the presumptive risk
level classification pursuant to what he has denominated as the
"statutory rape exception" under risk factor 2 (see People v
Weatherly, 41 AD3d 1238, 1238-1239 [2007]), the record indeed
reflects that County Court – despite authoring what otherwise was
a detailed written decision in this matter – did not expressly
reference defendant's request in this regard. That said, County
Court did expressly reference each of the factors relied upon by
defendant – the age difference between defendant and his victims,
the lack of forcible compulsion, defendant's prior criminal
history and his acceptance of responsibility and/or participation
in therapy – elsewhere in its written decision and thoroughly
discussed the conduct forming the basis for defendant's violation
of probation. Accordingly, we are satisfied that County Court's
findings provide an adequate basis for intelligent appellate
review and, further, that defendant failed to establish, by a
preponderance of the evidence (see People v Gillotti, ___ NY3d
                                 -4-              517891

___, ___, 2014 NY Slip Op 04117, *13-14 [2014]),2 that a downward
departure from the presumptive risk level classification was
warranted. Defendant's remaining contentions, to the extent not
specifically addressed, have been examined and found to be
lacking in merit.

         Peters, P.J. and Clark, J., concur.


Garry, J. (dissenting).

      We respectfully dissent, finding merit in defendant's
arguments that the record lacks clear and convincing evidence
that he had three or more victims, relative to risk factor 3, and
that he established relationships with the victims for the
primary purpose of victimizing them, relative to risk factor 7.
Further, in light of the lifelong severe consequences that
necessarily result from a risk level II classification, the
matter should be remitted for a full and express analysis and
determination relative to defendant's request for a downward
departure; this weighty decision should not be upheld upon mere
implication or inference.

      The People must establish the risk level classification by
clear and convincing evidence. Reliable hearsay, including grand
jury minutes, the presentence investigation report, a victim
statement and the case summary, may be used to meet this burden
(see People v Mingo, 12 NY3d 563, 571-574 [2009]; People v
Belile, 108 AD3d 890, 890 [2013], lv denied 22 NY3d 853 [2013]).
As relevant here, the risk assessment guidelines provide that a
defendant should be assessed 20 points for risk factor 3 if there
were two victims, or 30 points for three or more victims (see Sex


     2
        To the extent that our prior decisions have held that a
defendant's request for a downward departure from the presumptive
risk level classification must be based upon clear and convincing
evidence (see e.g. People v Mercado, 117 AD3d 1367, 1368 [2014];
People v Carter, 106 AD3d 1202, 1204 [2013]), those decisions
should not be followed in light of the Court of Appeals' recent
pronouncement in Gillotti.
                              -5-                517891

Offender Registration Act: Risk Assessment Guidelines and
Commentary at 10 [2006]). Here, the record lacks clear and
convincing proof of prohibited sexual conduct with the third
victim referenced in the indictment – as to whom defendant
pleaded guilty to endangering the welfare of a child and
aggravated harassment in the second degree. During the plea
allocution, defendant admitted that he had engaged in
conversations of a sexual nature with this victim, and the victim
testified before the grand jury that defendant had contacted her
by webcam video, during which time he touched himself in the area
of his genitals, over his clothing. There was no physical sexual
contact between the two at any time. As defendant argues, the
grand jury testimony included too little factual detail to
constitute clear and convincing evidence that he was
masturbating. Although this might be inferred, it was not
clearly revealed; viewed objectively, the testimony demonstrates
nothing more than a brief swipe of defendant's hand in his
genital region, accompanied by innuendo. Our precedent
establishes a significantly higher standard of misconduct
(compare People v Clavette, 96 AD3d 1178, 1179-1180 [2012], lv
denied 20 NY3d 851 [2012]; People v Ramirez, 53 AD3d 990, 990
[2008], lv denied 11 NY3d 710 [2008]). Therefore, we would
reduce this assessment by 10 points.

      We further find that the record supports defendant's
contention that he was improperly assessed 20 points under risk
factor 7 because his conduct was not "directed at a stranger or a
person with whom a relationship had been established or promoted
for the primary purpose of victimization" (Sex Offender
Registration Act: Risk Assessment Guidelines and Commentary at 12
[2006]). The majority accepts County Court's finding that
defendant and the victims were not "strangers," but that
defendant had engaged in "grooming" behavior; we disagree. An
example of grooming behavior provided in the guidelines is that
of a scout leader who chose the position in order to gain access
to his victims (see Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary at 12 [2006]). As defendant
argues, the record does not establish this type of calculated
behavior on his part, nor was there a showing of emotional
manipulation, undue influence or other customary indicia of
grooming conduct. Instead, the record is replete with evidence –
                              -6-                517891

including three expert evaluations – establishing that defendant
is significantly lacking in sexual and social maturity, has
difficulty in understanding and interpreting social cues,
functions socially at the level of a young teenager of roughly
the same age as his victims, and would be unable to maintain
appropriate relationships with young women of his chronological
age. Without condoning defendant's conduct, as he was fully
aware that the girls were significantly younger than he and
deliberately chose to ignore this fact, we do not find clear and
convincing evidence that he purposefully "groomed" the victims
for the sole purpose of victimizing them (see People v Pelaez,
112 AD3d 684, 684-685 [2013]; compare People v Tejada, 51 AD3d
472, 472 [2008]; see also Rebecca Williams, Ian Elliot & Anthony
Beech, Identifying Sexual Grooming Themes Used by Internet Sex
Offenders, 34 Deviant Behavior 2, 135-152 [2013]). Therefore, we
would reduce defendant's assessment by 20 points in this
category.

      As thus reduced, the 75 assessed points would place
defendant squarely at the cusp of a risk level II sex offender.
For this reason and those stated above, his request for a
downward departure from the presumptive risk level merits a most
close and careful review. Courts have the discretion to depart
from the presumptive risk level where there is "an aggravating or
mitigating factor of a kind, or to a degree, that is otherwise
not adequately taken into account by the guidelines" (Sex
Offender Registration Act: Risk Assessment Guidelines and
Commentary at 4). A three-step analysis is required: first,
evaluating, as a matter of law, whether such circumstances are
shown, second, determining whether the proponent has met his or
her burden of proof and, third, exercising discretion "by
weighing the aggravating and mitigating factors to determine
whether the totality of the circumstances warrants a departure to
avoid an over- or under-assessment of the defendant's
dangerousness and risk of sexual recidivism" (People v Gillotti,
___ NY3d ___, ___, 2014 NY Slip Op 04117, *12 [2014]). As the
majority notes, it has recently been determined that defendant's
burden of proof in seeking a downward departure is preponderance
of the evidence, rather than the higher standard of clear and
convincing evidence (id. at *13-*14).
                               -7-                517891

      This record lacks any express determination by County Court
of defendant's contention that he established the existence of
mitigating circumstances calling for a downward departure.
Although the majority accepts an implied finding basing the
determination primarily upon defendant's probation violation, the
statute requires findings of fact and conclusions of law to be
expressly rendered (see Correction Law § 168-n [3]). In light of
this requirement, it is necessary to remit for further review and
determination of this issue (see People v Filkins, 107 AD3d 1069,
1070 [2013]; People v Burke, 68 AD3d 1175, 1177 [2009]). This is
particularly true upon the record presented here; as stated
above, there is significant evidence that, at the time of the
underlying offenses, defendant was not functioning at the level
ordinarily expected for his age. This Court has not yet applied
the "statutory rape exception" that has been well established in
the Fourth Department in cases where there is no great disparity
between the ages of the offender and the victim(s), and there are
other indicia of willing, albeit legally prohibited, sexual
conduct (see e.g. People v Goossens, 75 AD3d 1171, 1171-1172
[2010]; People v Weatherley, 41 AD3d 1238, 1238-1239 [2007]).
These issues bear examination and review. In light of the record
evidence, we should not lightly dismiss defendant's assertion
that the circumstances underlying his crimes fail to provide any
compelling evidence of his danger of re-offense and risk to the
community.1 The majority accepts County Court's implied finding
that defendant's violation of the terms of his initial probation
may reveal a compulsive and dangerous condition; however, in
evaluating the sexual conduct of adolescents and young adults, we
must exercise the greatest level of care and scrutiny, making a
full effort to avoid imposing grave permanent consequences for
sexual misconduct when the risk of long-term recidivism is not
clearly shown. For these reasons, we would reverse and remit for
further proceedings.

         Rose, J., concurs.




     1
        Notably, the victim involved in the probation violation
was 17 years old, and defendant met her in a college setting.
                        -8-                  517891

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
