People v. Marrero
37 Misc. 3d 429
N.Y. Sup. Ct.2012Background
- Marrero pleaded guilty in 2009 to possession of child pornography; sting operation uncovered 300–600 images of prepubescent girls; he was released from federal prison to supervised release in 2011.
- SORA risk assessment hearing held July 7, 2012; People scored 80 points, Board scored 30 points, leading to different level/depiction outcomes.
- Board recommended upward departure to level two; the court ultimately scored 20 points under factor 5 and did not apply stranger or multiple-victim points despite evidence they existed.
- Position Statement (June 1, 2012) by the Board asserted changes to how child pornography cases should be scored, aiming to address anomalous results and permit departure-based adjustments.
- Lower court and dissenting views emphasize that the Position Statement cryptically omits guidance on stranger/multiple-victim scoring and may not align with the Commentary governing the RAI.
- Court recognizes the Position Statement as binding policy but criticizes its lack of a comprehensive framework for departs and reliance on outdated or questionable actuarial bases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Position Statement change RAI scoring for child pornography? | Marrero | Marrero | Yes; it alters how such cases are scored, superseding prior practice. |
| Is departure guidance under the Position Statement adequate? | People argues departures can be guided by several factors but not with a clear template. | Board contends factors justify departures from presumptive levels. | No; the Statement fails to provide a workable template for departures. |
| Should courts defer to the Position Statement as policy guidance? | Commentary historically governs RAI interpretations; deference to Position Statement should be warranted. | Position Statement is binding policy and deserves deference. | Yes; the court treats it as controlling policy but critiques its utility. |
| Is there empirical support linking the listed factors to recidivism for child pornography offenders? | Factors may reflect online investment but lack robust risk correlation. | Factors are empirically driven and relevant to risk assessment. | No; empirical basis is weak and many relevant factors are omitted. |
| Does the Position Statement resolve the anomaly of stranger/multiple-victim scoring for child pornography? | Johnson/Poole concerns require consistent scoring with risk alignment. | Position Statement seeks to correct anomalies by dropping certain scores. | No; it leaves unresolved how to treat stranger and multi-victim factors. |
Key Cases Cited
- People v. Johnson, 11 NY3d 416 (2008) (stranger-victim points must be assessed to avoid unjust results; discusses RAI guidance)
- People v. Poole, 90 A.D.3d 1550 (2011) (affirmed scoring for multiple victims; related to Johnson framework)
- People v. Alemany, 13 NY3d 424 (2009) (RAI factor 15 homeless living cited to support scoring rationale)
- People v. Simmonds, 74 A.D.3d 1505 (2010) (RAI commentary reliance in scoring decisions)
- People v. Wizes, 79 A.D.3d 1543 (2010) (courts treat RAI commentary as controlling in departure decisions)