People v. DeDona
102 A.D.3d 58
N.Y. App. Div.2012Background
- Defendant Andrew DeDona traveled to New Jersey to meet what he believed were two underage girls and was arrested at the meeting location after online chats with an undercover officer posing as a 14-year-old.
- He previously pled guilty in federal court to interstate travel with intent to engage in illicit sexual conduct with a person under 18 and received 37 months imprisonment and 15 years supervised release.
- Upon federal release, the Board of Examiners of Sex Offenders prepared a risk assessment in 2010 scoring 60 points, suggesting level one, but recommended an upward departure to level two due to admitted intent to sexual activity with two children.
- A SORA hearing resulted in an upward departure to level two, with the court finding aggravating factors notwithstanding the presumptive level one score.
- On appeal, DeDona argued that a law enforcement officer posing as a minor cannot be a ‘victim’ for risk-factor scoring and that no aggravating factors supported an upward departure.
- The court affirmed the upward departure, holding that the risk factors did not require actual physical contact and that aggravating factors supported a higher risk level.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether fictitious/undercover victims may generate risk points | People argues risk factors 3, 5, 7 apply to targets believed to be victims. | DeDona contends no points for fictitious victims since no actual contact occurred. | Points upheld; fictitious victims may support risk factors. |
| Whether risk factors 3, 5, 7 require actual victim contact | Guidelines permit scoring based on victim characteristics and relationship, not necessity of physical contact. | Costello distinguishes risk-factor 4 but not these factors; no need for real contact here. | Risk factors 3, 5, 7 do not require actual contact; permissible to score. |
| Whether upward departure was warranted given presumptive level | Aggravating factors demonstrate higher risk than presumptive level indicates. | Supervision and other mitigators suggest no departure warranted. | Upward departure affirmed; aggravating factors supported greater risk. |
| Whether two aggravating factors were proven by clear and convincing evidence | Defendant’s actions showed intent to engage with two minors and transmitting explicit images. | argues lack of real victims diminishes aggravation. | Two aggravating factors proven; adequate to support departure. |
| Impact of expert reports and other mitigators on departure | Court properly weighed aggravating factors despite other reports. | Additional psychosexual reports not in record should mitigate. | Mitigating reports not controlling; departure affirmed. |
Key Cases Cited
- People v Costello, 35 AD3d 754 (2006) (Guidelines distinguish risk factor 4; fictitious victims do not automatically invalidate scoring)
- People v Agnew, 68 AD3d 526 (2009) (Upward departure supported where undercover officer misleads, indicating high risk)
- People v Johnson, 11 NY3d 416 (2008) (Guidelines and departure framework for SORA considerations)
- People v Wyatt, 89 AD3d 121 (2012) (Aggravating factors may support upward departure when not adequately captured by guidelines)
- People v Agarwal, 96 AD3d 1450 (2012) (Internet-based pre-victim conduct supports upward departure in similar context)
- Doe v Pataki, 120 F.3d 1263 (2d Cir. 1997) (SORA-like goals of public safety and notification; supports regime’s aims)