AD2 order dated May 20, 2015, affirming a level three SORA designation. Decision below: 128 AD3d 927, 9 NYS3d 400. Court of Appeals granted leave October 20, 2015. (Cross-Appeals)

ISSUE PRESENTED: (A) Whether the SORA hearing court erred in assessing 20 points under risk factor 7 for establishing or promoting a relationship with the victims for the primary purpose of victimization where defendant was a long-time family friend. (B) Whether courts can hold multiple SORA hearings for one offender in different counties for the same “current offense” - he pled guilty in two counties for crimes committed against the same children in co-ordinated prosecutions. (Assigned counsel: Lisa Napoli & Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC 10038.)

Issue before the Court: In SORA risk assessment instruments (RAI), what constitutes “grooming” of the victim under risk factor 7.

 

Held: “Grooming” is present only if, at the time when the relationship is established, it was for the purpose of sexual victimization.

 

CAL Observes: The SORA RAI treats defendants as posing a greater risk for recidivism if the victim was a stranger to the defendant.  The exception is where the victim knew the defendant, but only because the defendant established the relationship for the very purpose of later victimization.  This is “grooming” -- the “scoutmaster” scenario.  What constitutes grooming has been the subject of conflicting decisions.  Here the defendant victimized the children of old family friends.  The Court held that, since the defendant knew these children since infancy through a long-time association with their parents, the children were neither strangers, nor were they “groomed.”  The relationship preceded the plan for predation.  This is a very nice distinction, but in SORA risk assessments, the points really count.