A judge has reduced the risk-level classification of a sex offender after finding his evaluation ran counter to a state Court of Appeals’ ruling on grading the dangers of violators who possess sexual images of children they do not know. Suffolk County Court Judge Barbara Kahn (See Profile) agreed with the contention of offender James McElroy that he deserved a lower classification because he had no prior relationships with the children whose images he possessed.

Judge Kahn wrote in People v. McElroy, 02061-2011, that the Court of Appeals’ ruling in People v. Johnson, 11 NY3d 416 (2008), highlighted the sometimes inappropriate allocation of negative risk-assessment points against offenders possessing child pornography. In fact, the Court of Appeals held, some offenders were given higher risk classifications than their criminal activities justified simply because they possessed multiple sexual images of children, even though the offenders had never met their “victims.”

In her experience, Judge Kahn wrote, “the majority of child pornography prosecutions involve an offender who does not know the children depicted in the criminal images.” She thus held that the 20 points assessed against Mr. McElroy for his “relationship” with the subjects of the pornography was improper and that the 90 points overall he was given during his risk assessment was too high. By reducing the total to 70 points, the judge dropped Mr. McElroy from a Level II offender, or a moderate risk to re-offend, to Level I, the lowest risk level. That means Mr. McElroy will not be listed on the state Sex Offender Registry and his reporting requirements to local authorities will not be as rigorous.

Vesselin Mitev of John Ray & Associates in Miller Place represented Mr. McElroy. Assistant Suffolk County District Attorney Laurie Moroff argued against down-grading the assessment.