Author of "Representing the Accused: A Practical Guide to Criminal Defense"
During SORA hearings, our clients often face the claim that they established or promoted a relationship for the purpose of victimizing the complainant. "The Guidelines provide that 20 points should be assessed under risk factor 7 if '[t]he offender's crime (i) was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization or (ii) arose in the context of a professional or avocational relationship between the offender and the victim and was an abuse of that relationship' (Guidelines, factor 7)." People v Cook, 2017 N.Y. LEXIS 723, *5-6, 2017 NY Slip Op 02468, 3 (N.Y. Mar. 30, 2017)
Prosecutors often try to assess these points even when the defendant and complainant are well known to each other.
In People v. Cook, supra, the Court of Appeals clarified the purpose of Factor 7, and reduced the defendant's sex offender level. The Court stated,
In arguing that points should be assessed to defendant under risk factor 7, the People conflate the concepts of grooming a victim and promoting a relationship for purposes of victimization. It is clear that points were not intended to be assessed under that risk factor based on grooming, in and of itself; instead, the assessment of those points should be determined based on the nature of the relationship in which the grooming takes place. If risk factor 7 were interpreted to require the assessment of 20 points for every offender who groomed a victim — in addition to offenders who are strangers or professionals — then the vast majority of offenders against child victims would be assessed those points. Such a blanket assessment of points is inconsistent with the purpose of the Guidelines, namely, to require enhanced community notification where abuse occurs in more distant relationships, which indicate an increased risk of reoffending.People v Cook, 2017 N.Y. LEXIS 723, *9-10, 2017 NY Slip Op 02468, 4-5 (N.Y. Mar. 30, 2017)
If you are uncertain as to whether points should be assessed for a particular risk factor, a great place to start your research is the New York guidelines, with explanations of the purpose for various factors and when points should or should not be assessed, found here - http://www.nycourts.gov/