THE MAJORITY DETERMINED THE DEFENDANT DEVELOPED THE RELATIONSHIP WITH THE COMPLAINANT FOR THE PRIMARY PURPOSE OF VICTIMIZING HER AND THEREFORE 20 POINTS WERE PROPERLY ASSESSED UNDER RISK FACTOR 7; THE COMPREHENSIVE DISSENT ARGUED THERE WAS A PRE-EXISTING RELATIONSHIP WITH THE COMPLAINANT WHICH RENDERD RISK FACTOR 7 INAPPLICABLE UNDER THE COURT OF APPEALS RULING IN COOK (SECOND DEPT).
The Second Department determined, over a comprehensive dissent, that defendant was properly assessed 20 points because his relationship with the 13-year-old victim was deemed to have been established for the primary purpose of victimizing her. The dissent argued there was a pre-existing relationship and, therefore, defendant did not develop the relationship for the purpose of victimization:
… [T]he record indicates that the defendant did not have a long-standing preexisting relationship with the complainant’s parents, and was not involved in the complainant’s life since her infancy. Rather, the defendant had worked with the complainant’s uncle and was invited to the uncle’s house for lunch, where he met the complainant. Thus, this case is readily distinguishable from the circumstances of Cook [29 NY3d at 121]. Contrary to the position of our dissenting colleague, the fact that the defendant’s initial contact with the complainant was unplanned and in person, rather than through the internet, is not determinative with respect to the assessment of points under risk factor 7 based on an offender’s establishment or promotion of a relationship with the victim for the primary purpose of victimization … . The Guidelines, which were created in 1996, do not limit the assessment of points under those circumstances to situations where the offender and the victim initially met online. People v Jony, 2023 NY Slip Op 04674, Second Dept 9-20-23
Practice Point: A long-standing relationship between a defendant and a victim of sexual abuse may demonstrate the relationship was not established for the primary purpose of victimization rendering the assessment of 20 points under risk factor 7 inapplicable. Here the majority concluded there was no such pre-existing relationship, but the dissent made a strong contrary argument.