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ANOMALY IN GUIDELINES MAY RESULT IN AN OVERESTIMATION OF THE CHILD-PORNOGRAPHY-BASED RISK, CASE REMITTED FOR FINDINGS.

The Third Department noted an acknowledged anomaly in the risk assessment guidelines for child pornography that may result in the overestimation of the risk. Because the SORA court did not make any findings about the possible overestimation, the case was remitted:

The Court of Appeals has found that an anomaly exists in assessing points to child pornography offenders under risk factor 7 in the RAI, in that the absence of a previous relationship between the offender and children pictured in pornographic images may not normally heighten the risk that the offender presents to the community, whereas a situation in which “the offender and the children are acquainted would seem to present a greater threat to the community, not a lesser one” … . The Court further concluded that such an anomaly may result in an overestimation of a child pornography offender’s risk of reoffense and danger to the public … . While the Court concluded that, despite the anomaly, the plain language of the guidelines of the Board of Examiners of Sex Offenders authorizes the assessment of points against child pornography offenders under risk factor 7, it further stated that, “in deciding a child pornography offender’s application for a downward departure, a [Sex Offender Registration Act] court should, in the exercise of its discretion, give particularly strong consideration to the possibility that adjudicating the offender in accordance with the guidelines point score and without departing downward might lead to an excessive level of registration” … .

In denying the request for a downward departure, County Court found that points were properly assessed under risk factor 7, but did not take into consideration the potential overestimation of defendant’s risk of reoffense and the danger to the public created by the assessment of those points. Accordingly, the matter must be remitted for the court to determine whether such an overestimation was created and whether a downward departure is therefore warranted … . People v Kemp, 2017 NY Slip Op 01618, 3rd Dept 3-2-17

 

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, ANOMALY IN GUIDELINES MAY RESULT IN AN OVERESTIMATION OF THE CHILD-PORNOGRAPHY-BASED RISK, CASE REMITTED FOR FINDINGS)/SEX OFFENDER REGISTRATION ACT (SORA) (ANOMALY IN GUIDELINES MAY RESULT IN AN OVERESTIMATION OF THE CHILD-PORNOGRAPHY-BASED RISK, CASE REMITTED FOR FINDINGS)/CHILD PORNOGRAPHY (SEX OFFENDER REGISTRATION ACT, ANOMALY IN GUIDELINES MAY RESULT IN AN OVERESTIMATION OF THE CHILD-PORNOGRAPHY-BASED RISK, CASE REMITTED FOR FINDINGS)/

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