| People v Filkins |
| 2013 NY Slip Op 04064 [107 AD3d 1069] |
| June 6, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vKenneth J. Filkins II, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley ofcounsel), for respondent.
Stein, J. Appeal from an order of the County Court of Washington County(McKeighan, J.), entered November 4, 2011, which classified defendant as a risk leveltwo sex offender pursuant to the Sex Offender Registration Act.
Defendant pleaded guilty to attempted rape in the second degree and was sentencedto 90 days of incarceration and 10 years of probation. Consequently, the Peoplesubmitted a risk assessment instrument (hereinafter RAI) in accordance with the SexOffender Registration Act (see Correction Law art 6-C), which presumptivelyclassified defendant as a risk level two sex offender. At defendant's subsequentappearance before County Court with counsel, the court declined his request for adownward departure and classified defendant as a risk level two sex offender. Defendantnow appeals.
Initially, we agree with defendant that 20 points were improperly assessed for riskfactor 4, a "[c]ontinuing course of sexual misconduct." While the record reflects thatsexual contact between defendant and the victim occurred on two consecutive evenings,it lacks clear and convincing evidence that the two acts were separated by at least 24hours (see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 10 [2006]; People v Redcross, 54 AD3d 1116, 1116-1117 [2008]; compare People v Simmonds,74 AD3d 1505, 1506 [2010]). However, we find that 15 points were appropriatelyassessed for risk factor 11, a [*2]history of "[d]rug or[a]lcohol abuse," based on the evidence that defendant smoked marihuana with thevictim during the period that she was at his apartment and that he had been drinking priorto one of the sexual encounters, and upon his subsequent admission that he was a dailyuser of marihuana at the time of the offense (see Sex Offender Registration Act:Risk Assessment Guidelines and Commentary at 15; People v Palmer, 20 NY3d 373, 377-378 [2013]; People v Lerch, 66 AD3d1088, 1089 [2009], lv denied 13 NY3d 715 [2010]). We also conclude thatdefendant was properly assessed 10 points for risk factor 8, "[a]ge at first act of sexualmisconduct," as defendant was 19 years of age at the time of the offense and points areassessed when offenses are committed by those "20 or less" (Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary at 13; see People v Robertson, 101AD3d 1671, 1672 [2012]).
Nonetheless, we conclude that remittal is required with respect to defendant's requestfor a downward departure. Whether to grant a downward departure from the presumptiverisk level is a matter within the sound discretion of the trial court and is only warrantedwhere a mitigating factor exists that is not otherwise taken into account by the guidelines(see People v Moss, 105AD3d 1099, 1099 [2013]; People v Kotzen, 100 AD3d 1162, 1162-1163 [2012],lv denied 20 NY3d 860 [2013]; People v Briggs, 86 AD3d 903, 905 [2011]; seealso Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at4). It is defendant's burden to establish the existence of a mitigating factor (seePeople v Moss, 105 AD3d at 1099; People v Kotzen, 100 AD3d at1162-1163; but see People vWyatt, 89 AD3d 112, 127-128 [2011], lv denied 18 NY3d 803 [2012]).
Here, in reaching a determination with respect to defendant's application for adownward departure, County Court's written order did not set forth its findings of factand conclusions of law as required by Correction Law § 168-n (3), and its limitedoral findings were not sufficiently detailed to permit intelligent review (see People v Kennedy, 79AD3d 1470 [2010]; Peoplev Beames, 71 AD3d 1300, 1301 [2010]; People v Burke, 68 AD3d 1175, 1177 [2009]; People v Crowley, 64 AD3d918, 919 [2009]).[FN*]Without a clear explanation of County Court's findings, and considering that, as a resultof our decision herein, there is now only a five point discrepancy between defendant'sscore (75 points) and a risk level one classification, we cannot ascertain whether CountyCourt would have reached a different result had defendant's request for a downwarddeparture been considered using the proper assessment of points (see generally People v Cruz,28 AD3d 819, 820 [2006]). Under these circumstances, we remit the matter toCounty Court for a disposition that complies with the statutory requirements.
Rose, J.P., Lahtinen, Spain and Garry, JJ., concur. Ordered that the order is reversed,on the law, without costs, and matter remitted to the County Court of Washington Countyfor further proceedings not inconsistent with this Court's decision.
Footnote *: We note that CountyCourt did not conduct a Sex Offender Registration Act hearing at which testimony wastaken. Instead, it allowed the parties to make written submissions setting forth theirarguments with respect to the RAI. Moreover, in adopting the RAI, County Court merelycommented that "95 is a correct score" and that it did not "find any reason to opt out ofthe guidelines."