Defendant H. Yen has been convicted in federal court of Distribution and Receipt of Materials that Contained Child Pornography. See 18 USC 2522 A (a) (2) (B). This court must "classify" defendant under New York's sex offender registration laws. For the reasons that follow, defendant will be classified as a "level one" offender.

I

Defendant pled guilty in the United States District Court for the Southern District of New York to possessing and "sharing" pornographic computer images of young children. The details of his personal history are not in dispute. In a nutshell, defendant is a 40 year old man who graduated from the University of California at Berkeley but who has since not made his mark. He is single, subject to depression, and living in a shelter or "halfway" house, and because of his conviction he is under intensive supervision. That supervision includes psychiatric treatment. [*2]

Under New York's Sex Offender Registration Act ("SORA"), defendant must register as a sex offender. The extent of the obligations to be imposed on a defendant would vary, depending on whether he is classified at level one, two, or three; level one would involve the fewest obligations. Such classifications are determined by how many points a defendant is assessed under standards related to the danger that he will re-offend.

Here the People's initial SORA evaluation assessed defendant as a presumptive level one offender, but the People asked for an upward departure to level two. Cf. People

v. Wyatt, 931 NYS2d 85 (2d Dep't 2011). Under the SORA classification scheme, the People charged defendant with 45 points. Thirty were for the "ten or less" age of the

"victims"—the children depicted in defendant's pornography. Another 15 were assessed for what the People opined was defendant's history of drug or alcohol abuse. That 45-point assessment, or any that involved 70 or fewer points, would have made defendant a "presumptive" level one offender. But the People asked that defendant be classified as a level two offender based on what they viewed as a substantial prospect that defendant would re-offend, beyond what was predicted by his total of 45 points.

The People subsequently filed a statement amending their position. Based

on case law developments, the People argued that defendant's point total should be 95, which would make him a presumptive level two offender. The People would add an extra 30 points in that defendant had more than three victims, and an extra 20 points because the victims were "strangers" to defendant. The People did not ask for an upward departure from a level two classification.

II

The People are correct in their view that defendant is presumptively a level two offender. Recent and controlling case law establishes that a defendant who has possessed

pornographic images of many children must be considered to have more than three victims, and must be considered to have victimized "strangers." See People v. Johnson, 11 NY3d 416 (2008); People v. Bretan, 84 AD3d 906 (2d Dep't 2011); People v. Blackman, 78 AD3d 803 (2d Dep't 2010). Any defendant in this defendant's position therefore is chargeable with the 50 points in these two categories, as well as with 30 points for the young age of the victims.

Defendant contests the view that he "abused" alcohol and drugs. But this court finds that defendant's admitted long term use of marijuana by itself requires the assessment of 15 points on this front. Those points, added to 30 points for the number of the victims, 20 points for the "stranger" status of the victims, and 30 points for the "ten or less" age of the victims, give defendant a score of 95. That places him squarely within the level two category, which is applicable to defendants who score from 75 to 105 points.

Defendant, however, asks for a downward departure to level one status. In People v. Wyatt, decided last month, the Second Department addressed how courts should decide requests [*3]for upward and downward departures from presumptive classification levels. As pertinent here, a defendant's request should be granted if the defendant establishes, by a preponderance of the evidence, the existence of a "factor" which "tends to establish a lower likelihood of re-offense or danger to the community" and which is "not adequately taken into account by the Guidelines...." People v.Wyatt at 94. As explained below, this court agrees that defendant has demonstrated his entitlement to a downward departure to a level one classification.

III

Child pornography is repellent. The customers who purchase and view the pornography are as important to the industry as those who create the pornography. For that reason, those who possess child pornography are as much subject to punishment as those who produce it. Such punishment does not offend the First Amendment, whether or not the pornography is considered "obscene." See New York v. Ferber, 458 US 747 (1982)^[FN1].

But the repugnant nature of the child pornography industry, and the damage done by those whose payments encourage child abuse, are not the issue here. The ultimate issue for the court at this post-conviction stage of defendant's federal litigation concerns how dangerous he is to his neighbors and whether the presumptive classification of defendant as a level two offender mirrors his dangerousness.

The defendants in cases like People v. Bretan and People v. Blackman posed a threat to their neighbors. Bretan had offered to pay an undercover officer to make a video of a 10 year old being sexually abused, he lived within sight of a children's playground, and children lived in his building. Blackman had arranged via computer to meet and have sex with a male undercover officer who Blackman believed to be 15. Understandably, in neither case did the Appellate Division believe the defendant deserved a downward departure from his presumptive SORA rating.

But this defendant's case is very different. Dr. Richard Kreuger has opined that defendant is a "remote risk" ever to be involved in a physical sex crime, and that his current treatment shows that there is an "excellent" chance that defendant will not re-offend even by again possessing child pornography. More particularly, the doctor opines that defendant is not a danger to children, and could be around them without supervision. In other words, the doctor believes that defendant's prior viewing habits are not related to any tendency personally to harm others. Defendant's current treating physician, Dr. Douglas Martinez, agrees. He has opined "within a reasonable degree of clinical certainty that [defendant] is in the lowest range of risk for any re-offense. He does not pose a danger to others."

Given the facts in Bretan and in Blackman, and the language in the sex offender classification rules, the decisions in those cases upholding those defendants' classifications make [*4]perfect sense. But this defendant, who must be assessed as an individual, is in a different position. As shown by at least a preponderance of the evidence, he is no danger to children. As to him, the number of victims and the fact that the pictures he possessed were of "strangers" has no bearing on whether he is a threat to re-offend. This court therefore concludes that a downward departure to level one is appropriate.

It remains only for this court to offer dictum. In this judge's view, the holdings

in Johnson and its progeny were driven by the language of the sex offender point categories, and were correct. As noted, also sensible were the decisions as to the defendants in Bretan and Blackman, given the underlying facts. But where possessors and viewers of child pornography are concerned, those egregious circumstances do not always apply. Not everyone who has viewed child pornography is a danger to his neighbors. Some are; some are not.

The language of the sex offender classification rules assigns points to possessors of child pornography for the "number" of victims, and the "stranger" classification of victims, in a way that was intended by the authors of the guidelines to apply to physical contact, and not to defendants who possessed and shared child pornography. The resultant language will typically add 50 points to the sex offender totals of those who possess child pornography, whether or not they are as dangerous as physical offenders. As a result, many possessors of child pornography who are not serious threats to the community will presumptively be classified as level two offenders. Since this court does not think that result would be consistent with the intent of the authors of the SORA guidelines it anticipates that many SORA applications made as to such defendants should result in downward departures to level one. The Court of Appeals seems sympathetic to this conclusion. In Johnson the Court interposed dictum of its own, noting that adding points in child pornography cases because the child victims and the defendants are "strangers" might generally produce "a seemingly anomalous result" not intended by the authors of the SORA guidelines. Johnson at 933.

Accordingly, defendant will be granted a downward departure and classified at SORA level one.

SO ORDERED

E N T E R:

Date: December 8, 2011MARK DWYER

Justice of the Supreme Court