| People v Mudd |
| 2007 NY Slip Op 06967 [43 AD3d 1128] |
| September 25, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ronald Mudd, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart andJames Ching of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.),dated August 26, 2005, which, after a hearing, designated him a level three sex offender pursuantto Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
On January 9, 1995 the defendant, who had already been convicted of a felony in New York,pleaded guilty in the California Superior Court to robbery and forcible penetration. Theconvictions resulted from his sexual assault on a female victim, which included manual vaginalpenetration. The defendant was imprisoned in California, released on parole, and returned toprison for failing to register in California as a sex offender.
Upon his subsequent return to New York, the defendant was evaluated for registration as aNew York sex offender. The risk assessment instrument prepared by the Board of Examinerscomputed a score of 85, which was a level two classification, but strongly recommended anupward departure to a level three classification due to his conviction in California. The Board ofExaminers stated that the defendant intended to rape the victim, and was stopped only by thereturn of the victim's boyfriend. Following a hearing pursuant to the Sex Offender RegistrationAct (Correction Law art 6-C, hereinafter SORA), the Supreme Court determined that a departurefrom the presumptive risk level was warranted. The court stated that the defendant failed toregister as a sex offender in California and was returned to prison as a parole violator, thedefendant had a "history of violence," he was "defiant and [*2]disrespectful," he denied his guilt in the California sex offense, andhe refused "to accept any responsibility for his actions." The Supreme Court noted that theunderlying California sex offense for which the defendant was convicted was the equivalent ofattempted rape in the first degree in New York. The Supreme Court adjudicated the defendant alevel three sex offender. The defendant appeals, claiming that there was an inadequate basis foran upward departure to a level three classification.
A court, in the exercise of its discretion, may depart from the presumptive risk leveldetermined by the risk assessment instrument based upon the facts in the record (see People v Guaman, 8 AD3d545, 545 [2004]). However, "utilization of the risk assessment instrument will generally'result in the proper classification in most cases so that departures will be the exception not therule' " (People v Guaman, 8 AD3d at 545, quoting Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 4 [1997 ed]). "A departure from the presumptive risklevel is warranted where 'there exists an aggravating or mitigating factor of a kind or to a degreenot otherwise taken into account by the guidelines' " (People v Inghilleri, 21 AD3d 404, 406 [2005], quoting SexOffender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [1997 ed]; see People v Mount, 17 AD3d714, 715 [2005]; People v Girup,9 AD3d 913, 913 [2004]; People v Gauman, 8 AD3d at 545).
Here, in departing from the presumptive risk level, the Supreme Court properly consideredthe defendant's parole violations, his history of violence, his defiant and disrespectful behavior,his refusal to accept responsibility for his actions, and his prior violent convictions, including therecent California conviction for robbery and forcible penetration, the facts of which meet therequired elements of New York's crime of attempted rape in the first degree. Thus, although thedefendant's total risk factor score of 85 resulted in his presumptive classification as a level tworisk pursuant to SORA, the Supreme Court's determination that the defendant was a level threerisk was supported by clear and convincing evidence (see Correction Law § 168-n[3]; People v Brown, 302 AD2d 919, 920 [2003]).
Accordingly, the Supreme Court providently exercised its discretion in designating thedefendant a level three sex offender (see Correction Law § 168-m). Spolzino, J.P.,Ritter, Dillon and Dickerson, JJ., concur.