By Jessica Dye
NEW YORK, Nov 15 (Reuters) - A New York appeals court
rejected a man's claim that his sex offender registration status
should be reduced because his "victim" was a federal agent
posing as an underage girl on the Internet.
In a unanimous opinion, the Appellate Division, Second
Department, ruled that Westchester County Court Judge Susan
Cacace had properly assessed the sex-offender designation level
of appellant Andrew DeDona despite the "fictitious" nature of
DeDona has been designated a Level 2 offender under New
York's Sex Offender Registration Act. Under SORA, convicted sex
offenders are assigned one of three risk levels, 1 being the
lowest and 3 the highest. The higher the level, the more
stringent the reporting requirements and restrictions for the
"The fact that the 14-year-old girl with whom the defendant
believed he was communicating was actually an undercover officer
does not lessen his risk of reoffense, or make him any less of a
risk to the community than he would be if he had succeeded in
making contact with an actual child," Presiding Justice Randall
Eng wrote in the opinion.
The underlying case against DeDona began in 2004, when he
began communicating online with an undercover police officer
posing as a 14-year-old girl named Jules, the ruling stated.
DeDona made plans to meet "Jules" and a fictitious 12-year-old
friend in New Jersey to engage in sexual activity, according to
When DeDona arrived, he was arrested. He later pleaded
guilty in New Jersey federal court to traveling across state
lines with the intent of engaging in illicit sexual conduct with
a minor and was sentenced to 37 months in prison.
After his release, DeDona was evaluated by the New York
State Board of Examiners of Sex Offenders to determine his
designation under SORA.
DeDona's initial assessment was Level 1. But the board
recommended DeDona be designated as a Level 2 offender, because
he had admitted his intent to engage in sexual activity with two
young girls. That recommendation was granted by Cacace in 2010.
DeDona appealed, arguing that an undercover officer posing
as a child was not the type of "victim" envisioned under SORA.
He said the assessment should have taken into account the fact
that he never made physical contact with an actual person.
But even if the victim was fictitious, DeDona's actions
demonstrated he may pose a risk to the public, the Second
"The defendant's communications demonstrate his intent to
commit various crimes, including statutory rape, and he poses as
much of a danger to the community as an offender who succeeds in
engaging in sexual activity with an actual teenager or pre-teen
he had targeted via the Internet," Eng wrote.
Eng was joined by Justices Mark Dillon, Thomas Dickerson and
John Leventhal in the opinion.
Lucian Chalfen, a spokesman for the Westchester County
district attorney's office, which argued the appeal, said the
ruling showed it was "immaterial" whether the offender was
communicating with an actual victim. "The significance of the
opinion is that the danger posed by the act lies with the
offender," he said.
An attorney for DeDona, Michael Burke, said that the risk
assessment system was flawed because it does not properly
account for Internet-based crimes where the "victim" is often
far removed, physically, from the offender.
"This wasn't a hands-on offense," Burke said.
The case is People v. DeDona, in the New York State Supreme
Court, Appellate Division, Second Department, No. 2010-4667.
For the people: Lois Valerio and Richard Hecht.
For DeDona: Michael Burke of Burke Miele & Golden.
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