| People v Burke |
| 2009 NY Slip Op 08902 [68 AD3d 1175] |
| December 3, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Casey C.Burke, Appellant. |
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Stein, J. Appeal from an order of the County Court of Cortland County (Campbell, J.),entered September 8, 2008, which classified defendant as a risk level three sex offender pursuantto the Sex Offender Registration Act.
Defendant was convicted upon his guilty plea of one count of rape in the third degree insatisfaction of charges that, in the late night and early morning hours of July 9-10, 2005, when hewas 23 years old, he engaged in sexual activity with four victims under the age of 17. As hisrelease date from prison approached, the Board of Examiners of Sex Offenders presumptivelyclassified defendant as a risk level three sex offender, based upon the number of points scored(135) on the risk assessment instrument, computed in accordance with the Sex OffenderRegistration Act (see Correction Law art 6-C). However, the Board recommended adownward departure to risk level two. A hearing was held, at which defendant argued, amongother things, that County Court should direct a downward departure to risk level one.[FN1] After the hearing, County Court ultimately declined to direct any downward departure andclassified defendant as a risk level three sex offender, based upon the points it determined wereproperly assessed (125). Defendant appeals.[*2]
Initially, we note that, in determining an offender's risklevel, the guidelines seek to address the probability of reoffense and the harm therefrom(see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 2[2006]). The guidelines were developed in accordance with the statutory mandate that specificfactors be addressed (see Correction Law § 168-l [5]). However, thosefactors were not intended to be exclusive (see Correction Law § 168-l [5]).Indeed, while the Board has determined that utilization of the risk assessment instrument willgenerally "result in the proper classification in most cases," it also recognized "that an objectiveinstrument, no matter how well designed, will not fully capture the nuances of every case" (SexOffender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]).Therefore, the risk assessment guidelines provide for the possibility of a departure from thepresumptive risk level in those circumstances where "there exists an aggravating or mitigatingfactor of a kind, or to a degree, that is otherwise not adequately taken into account by theguidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4[2006]).
Here, the Board recommended a departure to risk level two based upon its determination thatthe victims' lack of consent was based solely on their ages and that their ages were notsignificantly disparate from defendant's. The Board further indicated that at least one of thevictims admitted that "some or most" of the sexual contact between defendant and the victimswas initiated by the victims.[FN2]In further support of a downward departure, defendant asserted that he was intoxicated at thetime of the offense and that he had subsequently completed sex offender and drug and alcoholrehabilitation treatment while incarcerated.
While the Board's recommendation was not binding on County Court (see People v Woodard, 63 AD3d1655, 1655-1656 [2009], lv denied 13 NY3d 706 [2009]; Matter of VanDover vCzajka, 276 AD2d 945, 946 [2000]), there are significant issues in the limited record beforeus as to whether it has been shown, by the requisite standard of clear and convincing evidence,that defendant presents a substantial risk of reoffense or threat to public safety (seegenerally Correction Law § 168-l [5]). However, County Court did not setforth findings of fact and conclusions of law underlying its determination in the written order asrequired by Correction Law § 168-n (3) and, in rejecting a downward departure from risklevel three, only addressed the age differential between defendant and the victims in its oraldecision on the record. Therefore, we are unable to discern whether County Court considered theother arguments advanced by the Board and by defendant or any other pertinent considerationsin support of a downward departure, and the record is insufficient to allow "meaningful appellatereview of the propriety of the court's risk level assessment" (People v Miranda, 24 AD3d 909, 911 [2005]). Considering thelong-standing and severe consequences that defendant will incur arising from his designation asa risk level three sex offender, it is imperative that the record be fully developed to ascertainwhether the underlying statutory purpose of such designation will be met under the particularcircumstances of this case. Accordingly, we must remit the matter to County Court (seePeople v Miranda, 24 AD3d at 911; see generally People v Sturdivant, 307 AD2d382, 383 [2003]).[*3]
Rose, J.P., Kavanagh, McCarthy and Garry, JJ., concur.Ordered that the order is reversed, on the law, without costs, and matter remitted to the CountyCourt of Cortland County for further proceedings not inconsistent with this Court's decision.
Footnote 1: On appeal, defendant isrequesting a downward departure to risk level two.
Footnote 2: A review of this victim'sdetailed sworn written deposition indicates that at least two of the victims actively pursued andencouraged such contact.