| People v Wells |
| 2012 NY Slip Op 08844 [101 AD3d 1407] |
| December 20, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Josiah Wells,Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Joseph P. Brucato of counsel), forrespondent.
Rose, J. Appeal from an order of the County Court of Rensselaer County (Ceresia, J.),entered August 11, 2011, which classified defendant as a risk level III sex offender pursuant tothe Sex Offender Registration Act.
In satisfaction of a four-count indictment charging defendant with engaging in anal sexualconduct with an eight-year-old girl, defendant pleaded guilty to sexual abuse in the first degreeand was sentenced to six months in jail and 10 years of probation. Defendant, who was 16 yearsold at the time of his crime, was presumptively classified under the Sex Offender RegistrationAct (see Correction Law art 6-C) as a risk level II sex offender with a score of 105points.[FN*]At the hearing, County Court reduced defendant's total risk factor score to 85 points, [*2]which still left his score within the risk level II classification.Nonetheless, the court concluded that an upward modification was required under thecircumstances and classified defendant as a risk level III sex offender. This appeal by defendantensued.
We reverse. "An upward departure from a presumptive risk classification is justified when anaggravating factor exists that is not otherwise adequately taken into account by the riskassessment guidelines and the court finds that such factor is supported by clear and convincingevidence" (People v O'Connell, 95AD3d 1460, 1460 [2012] [internal quotation marks and citation omitted]; see People v Burch, 90 AD3d1429, 1430 [2011]). In our view, the aggravating factor relied upon by County Court, i.e.,"the length and nature of the [d]efendant's abuse of the victim," was adequately taken intoconsideration by the assessment of 20 points on the risk assessment instrument for continuingcourse of sexual misconduct, and nothing in the record supports an upward departure (see People v Jamison, 96 AD3d1237, 1238-1239 [2012]; see alsoPeople v Roberts, 54 AD3d 1106, 1107 [2008], lv denied 11 NY3d 713 [2008]).Although County Court relied upon People v Stewart (77 AD3d 1029 [2010]), People v Harris (50 AD3d 1556[2008], lv denied 10 NY3d 716 [2008]) and People v Leibach (39 AD3d 1093 [2007], lv denied 9NY3d 806 [2007]) in support of the upward departure, we cannot agree that the circumstanceshere, while certainly reprehensible, present similar aggravating factors beyond the points alreadyassessed. We also note that "defendant's point score of 85 was well below the threshold for alevel [III] adjudication" and the People did not request an upward departure (People v Aguilar, 92 AD3d 401,401 [2012]; accord People v Jamison, 96 AD3d at 1238-1239; compare People vStewart, 77 AD3d at 1030). Under these circumstances, we conclude that an upwarddeparture was not warranted.
Lastly, we have reviewed defendant's contention that County Court abused its discretion bynot directing a downward departure from the presumptive risk classification to a risk level I andfind no mitigating circumstances that would support such a result (see People v Jamison,96 AD3d at 1238; People vJohnson, 77 AD3d 1039, 1040 [2010]).
Peters, P.J., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order is reversed,on the law, without costs, and defendant is classified as a risk level II sex offender under the SexOffender Registration Act.
Footnote *: Although the proposed riskassessment instrument initially submitted to County Court indicated that defendant waspresumptively classified as a risk level III sex offender with a score of 115 points, the Peopleacknowledged at the hearing that 10 points were mistakenly added. The resulting total of 105points presumptively classified defendant as a risk level II offender.