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A 28-year-old man who contacted a 15-year-old girl only through the Internet and by telephone before they met and had sex was not a “stranger” under the Sex Offender Registration Act, an upstate appellate panel has ruled. The distinction resulted in the defendant being adjudicated a Level 1 “low risk” sexual offender, rather than a Level 2 “moderate risk” offender. “The term ‘acquaintance’ spans a range of social interactions, and we conclude in this case that, based upon the extensive communication through electronic means over a period of weeks and the information learned therein, defendant and the victim were not strangers when they engaged in sexual relations,” Presiding Justice Henry J. Scudder wrote for the unanimous Appellate Division, Fourth Department, panel in People v. Helmer, 853. The Fourth Department decision appears on page 35 of the print edition of today’s Law Journal. Defendant Glen D. Helmer accessed the social-networking site MySpace.com in 2005 in order to meet women in their 20′s who lived near him in Cayuga County, according to the decision. The teenaged victim’s name came up in Mr. Helmer’s search because she had listed her age as 20. The two talked on the phone at least 30 times and e-mailed and instant-messaged more than 100 times before going to a park and having dinner on Dec. 31, 2005, and then having sex later that night, Justice Scudder wrote. Two months later, Mr. Helmer learned that the victim was only 15, and that she was pregnant. Eight months later, after the girl ran away from home and moved in with him, he was arrested and charged with 18 separate counts. Mr. Helmer pleaded guilty to four counts of third-degree rape and two counts of criminal contempt and was sentenced to one-to-three years in prison. He was released in May 2008, after serving 19 months. At Mr. Helmer’s Sex Offender Registration Act hearing, Cayuga County Surrogate’s Court Judge Mark H. Fandrich found that the prosecution had proved by clear and convincing evidence that Mr. Helmer and the victim were “strangers,” and therefore assessed 20 points for that factor. With a total score of 85, Mr. Helmer was a Level 2 or “moderate risk” offender. Among other distinctions, Level 2 (and Level 3) offenders must register annually for life with the Division of Criminal Justice Services. Level 1 offenders must register for at least 20 years. Mr. Helmer appealed, arguing that he in fact knew the victim. Because they were not “strangers,” he contended, he should be assessed zero points for that factor, leaving him with a total of only 65 points, which would make him a Level 1 risk. The prosecution likened the case to People v. Lewis , 45 AD3d 1381, and People v. Gaines , 39 AD3d 1212, in which the defendants had also had sex with their victims on the same day as their first face-to-face meetings and were therefore deemed strangers. The prosecution also argued that, in the alternative, Mr. Helmer established the relationship with the victim “for the purpose of victimizing,” which also would raise his score to Level 2. The panel, however, ruled that Mr. Helmer’s electronic communications with the victim distinguished their relationship. “[The] defendant and the victim had communicated via the Internet and telephone for several weeks before they actually met in person,” the panel noted. “Through their communications, the victim knew defendant’s name and age, as well as the status of defendant’s pending divorce.” Therefore, the panel concluded, the defendant and the victim were not in fact strangers. The panel modified the lower court’s holding, reducing Mr. Helmer’s risk assessment from Level 2 to Level 1. Justices Robert G. Hurlbutt, Salvatore R. Martoche, Nancy E. Smith and John V. Centra joined the opinion. Charles A. Marangola of Moravia represented Mr. Helmer. “‘Contact’ means a lot of different things with these evolving technologies,” Mr. Marangola said. “You can [become an 'acquaintance'] through Twitter, text-messaging or e-mailing. You don’t actually have to have contact.” Brian N. Bauersfeld represented the Cayuga County District Attorney’s Office. District Attorney Jon E. Budelmann said that the decision may not be wrong, but that the law needs to be clarified. “To me this was either a stranger or a relationship established for the purpose of victimization. If you never met somebody before, she’s a stranger,” Mr. Budelmann said. “I think the guidelines need to be amended. From my point of view, it should be a more liberal view of what is a ‘stranger.’” @

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