| People v Walker |
| 2013 NY Slip Op 02430 [105 AD3d 1154] |
| April 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vWilliam Walker, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Spain, J. Appeal from an order of the County Court of Ulster County (Williams, J.),entered November 7, 2011, which classified defendant as a risk level two sex offenderpursuant to the Sex Offender Registration Act.
Upon his guilty plea entered pursuant to a plea agreement, defendant was convictedof the crime of possessing a sexual performance by a child. The charge stemmed from hisconduct on November 9, 2008 in viewing and displaying videos of sexual performancesby children on computers visible to passers-by at a public library located on a collegecampus. While in jail following that plea, defendant was charged with assault in thesecond degree (of a correction officer) and, upon his release from jail and while awaitingsentencing, was arrested on March 5, 2009 for obstructing governmental administrationand resisting arrest.[FN1]At sentencing, County Court (R. Sise, J.) determined that defendant's postplea arrestsand/or conduct had violated the [*2]terms and conditionsof the plea agreement and imposed an enhanced sentence of 1
Prior to defendant's release from prison, the Board of Examiners of Sex Offendersprepared a risk assessment instrument (hereinafter RAI) that presumptively classified himas a risk level one sex offender (45 points) under the Sex Offender Registration Act(see Correction Law art 6-C). The Board and the People recommended anupward departure to risk level two primarily based upon his postplea, presentencingconduct and arrests, as well as his conduct while later incarcerated on the enhancedsentence. After a hearing, County Court (Williams, J.) agreed that an upward departurewas warranted and classified defendant as a risk level two sex offender, relying upon thedocumentary evidence, including the Board's case summary, the plea minutes, the inmatedisciplinary hearing results and watch commander activity report, and his criminalhistory. In upwardly designating defendant a risk level two sex offender, the court citedthe nature of the instant offense, i.e., openly viewing child pornography in a manner thatthe passing public could see the images. The court also based its decision on defendant'spostplea conduct, which included the report and allegation that, while incarcerated onthis plea and awaiting sentencing, defendant had openly masturbated while looking atphotographs of children in his cell in full view of correction officers. The court foundthat "the brazen, open and public nature of . . . defendant's deviant behaviorpalpably increases the risk that he will re-offend" and that "the risk assessment guidelinesdo not adequately take into account that aggravating factor." Defendant now appealsfrom this determination.
We affirm. Under settled law, "[a]n upward departure from a presumptive riskclassification is justified when an aggravating factor exists that is not otherwiseadequately taken into account by the risk assessment guidelines and the court finds thatsuch factor is supported by clear and convincing evidence" (People v O'Connell, 95 AD3d1460, 1460 [2012] [internal quotation marks and citation omitted]). Here, the Peoplemet their burden of establishing the proper risk classification by clear and convincingevidence (see People vChristie, 94 AD3d 1263, 1263 [2012], lv denied 19 NY3d 808 [2012]).With respect to the risk factors related to the current offense(s) under section I of theRAI, the only points that could be assessed were under factor 5 for the "[a]ge of [the]victim" (30 points), based upon the fact that the young children depicted and victimizedin the pornography being openly viewed by defendant were all under age 10. No factortook into consideration the very public and conspicuous display of these images brazenlyin a library setting, which County Court rationally concluded reflected a lack ofinhibition and insight into and concern for the inappropriateness of his conduct,increasing the likelihood that he would reoffend.
County Court further relied upon the postplea incident in jail, also a public displaydemonstrating defendant's lack of control and inhibitions and his unabated proclivities.While defendant testified and denied this incident, the court found his testimony to benot credible and we discern no basis for disturbing that determination. Althoughdefendant was assessed 10 points for unsatisfactory conduct while confined[FN2]under factor 13 of section III of the RAI for [*3]post-offense behavior, that did not adequately take intoconsideration that the conduct was not discovered inadvertently by correction officialsbut, rather, was exhibitionist or public in nature and was accompanied by defendantviewing photographs of young children reflecting his sexual preoccupation with them(see People v Freeman, 85AD3d 1335, 1336 [2011]; People v Curthoys, 77 AD3d 1215, 1216 [2010]; People v Lesch, 38 AD3d1129, 1130 [2007], lv denied 8 NY3d 816 [2007]). As the court, inupwardly departing from the presumptive risk classification, properly relied on factorsnot adequately taken into consideration by the RAI and the guidelines, its classificationof defendant as a risk level two is amply supported in the record and should be affirmed(see People v O'Connell, 95 AD3d at 1461).
Defendant's remaining claims lack merit. He made no good cause showing to warrantCounty Court assigning substitute counsel, and the denial of this request, following asufficient inquiry, was not an abuse of discretion (see People v Porto, 16 NY3d 93, 99-100 [2010]; People v Linares, 2 NY3d507, 510-511 [2004]; People v Phillips, 96 AD3d 1154, 1156 [2012], lvdenied 19 NY3d 1000 [2012]). Finally, defendant has not demonstrated any error orimprovidence in the court's denial of his baseless motion for recusal (see People vMoreno, 70 NY2d 403, 405-406 [1987]; People v Oehler, 52 AD3d 955, 956-957 [2008], lvdenied 11 NY3d 792 [2008]).
Rose, J.P., Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: Defendant was alsoarrested for sexual abuse, a charge presented to the grand jury which returned a no bill,and County Court (Williams, J.) ruled that it would not be considered at the Sex OffenderRegistration Act hearing.
Footnote 2: Even if, under factor 13,defendant had been assessed the full 20 points for unsatisfactory conduct while confined"with sexual misconduct" (for a total of 55 points, still a presumptive level one), as heurges should have occurred instead of an upward departure, this factor still would notadequately take into consideration the public nature of this conduct and the use ofchildren's images to facilitate his arousal.