An appeals court reduced the risk level classification of a sex offender after determining his victim was not a stranger to him nor a person he developed a relationship with primarily so he could sexually victimize her.
The Appellate Division, Third Department, reclassified Jonathan Birch as a Level 1 offender under the Sex Offender Registration Act [SORA] from the Level 2 category in which he had been placed in by Albany Supreme Court Justice Thomas Breslin.
The change means Birch will not be listed in the state’s sex offender registry and will face less rigorous reporting requirements to local authorities.
The appeals judges said in a 4-0 ruling in People v. Birch, 516939, that Breslin improperly assigned Birch 20 points under a procedure that enhances the risk assessment if offenders were strangers or developed acquaintances for the purpose of sexually exploiting victims.
Justice John Egan Jr. (See Profile) noted that Birch, then 35 years old, met his 16-year-old victim while waiting tables at an Albany-area restaurant in November 2010. For the next five months, the two communicated via text messages, often daily, the court said.
“Given this level of contact, it cannot be said that defendant was a ‘stranger’ to the victim at the time of the underlying crime in March 2011,” Egan wrote.
Similarly, the judges said there is no “clear and convincing evidence” that Birch developed the relationship primarily to sexually victimize the teen.
Birch pleaded guilty to one count of third-degree rape and received six months in jail.
Theresa Suozzi of Saratoga Springs represented Birch. Assistant Albany County District Attorney Vincent Stark argued for prosecutors.