| People v Beames |
| 2010 NY Slip Op 02037 [71 AD3d 1300] |
| March 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Patrick J.Beames, Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (Amy B. Merklen of counsel), forrespondent.
McCarthy, J. Appeal from an order of the County Court of Delaware County (Becker, J.),entered February 19, 2009, which classified defendant as a risk level three sex offender pursuantto the Sex Offender Registration Act.
In 2007, defendant was sentenced to a prison term of 1 to 3 years after pleading guilty torape in the third degree, in full satisfaction of a three-count superior court information. Prior tohis release from prison, the Board of Examiners of Sex Offenders prepared a risk assessmentinstrument that presumptively classified defendant as a risk level two sex offender (100 points)in accordance with the Sex Offender Registration Act (see Correction Law art 6-C).Nevertheless, the Board recommended an upward departure to risk level three status based upondefendant's criminal history and his apparent attraction to adolescent girls. Following a riskassessment hearing, County Court classified defendant as a risk level three sex offender,prompting this appeal.
We reverse. "To justify an upward departure from a presumptive risk classification, anaggravating factor must exist which was not otherwise adequately taken into consideration bythe risk assessment guidelines, and the court's finding of such a factor must be supported by clearand convincing evidence" (People vBrown, 45 AD3d 1123, 1124 [2007] [citations omitted], lv denied 10 NY3d 703[2008]; see People v McElhearn, 56AD3d 978, 979 [2008], lv denied 13 [*2]NY3d 706[2009]). Further, County Court must "render an order setting forth its determinations and thefindings of fact and conclusions of law on which the determinations are based" (Correction Law§ 168-n [3]). Here, County Court purportedly relied on defendant's prior criminal historyinvolving young girls, his denial of a history of drug and alcohol abuse and a clinical assessmentthat he is unable to control impulsive sexual behavior as evidence warranting an upwarddeparture. Based upon our review of the record, it is unclear what crimes County Courtconsidered and whether those crimes were already adequately covered by the risk assessmentinstrument. Further, defendant's history of drug and alcohol abuse is accounted for by theassignment of 15 points under risk factor 11 and there is no evidence in the record of a clinicalassessment of defendant. Accordingly, County Court's findings of fact and conclusions of laware insufficiently detailed to permit intelligent appellate review (see People v Johnson, 67 AD3d1206, 1207 [2009]). Inasmuch as there is evidence in the record regarding defendant's priorcriminal history with young girls that may warrant an upward departure,[FN*]the matter must be remitted for the court's issuance of sufficiently detailed findings of fact andconclusions of law as to whether such a departure is appropriate.
Regarding defendant's claim that a downward departure is warranted, a review of the recordreveals no mitigating circumstances not accounted for in the risk assessment instrumentsupporting such a departure (see Peoplev Mothersell, 26 AD3d 620, 621 [2006]). Finally, defendant's contention that he wasimproperly assigned points for use of forcible compulsion was not raised before County Courtand is therefore unpreserved for our review (see People v Milton, 55 AD3d 1073 [2008]). In any event, even ifwe were to accept his challenge to the 10 points assigned for the use of violence under risk factor1, defendant would still remain a presumptive risk level two sex offender.
Cardona, P.J., Peters, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is reversed,on the law, without costs, and matter remitted to the County Court of Delaware County forfurther proceedings not inconsistent with this Court's decision.
Footnote *: We note that one crime, withsexual implications, that is discussed in the Board's case summary was not included indefendant's presentence investigation report. The title of that crime is not recognized in NewYork, indicating that it may be an out-of-state conviction. The record is unclear concerning thisconviction.