| People v Brown |
| 2007 NY Slip Op 09150 [45 AD3d 1123] |
| November 21, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph Brown,Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Kane, J. Appeal from an order of the County Court of Sullivan County (LaBuda, J.), enteredOctober 16, 2006, which classified defendant as a risk level three sex offender pursuant to theSex Offender Registration Act.
In 1997, defendant was convicted of attempted rape in the first degree, sexual abuse in thefirst degree and endangering the welfare of a child. In anticipation of his release from prison, theBoard of Examiners of Sex Offenders evaluated defendant and presumptively classified him as arisk level two sex offender in accordance with the Sex Offender Registration Act (seeCorrection Law art 6-C), but recommended an upward departure to risk level three. Following ahearing, County Court agreed that an upward departure was warranted and classified defendantas a risk level three sex offender. On defendant's appeal, we affirm.
To justify an upward departure from a presumptive risk classification, an aggravating factormust exist which was not otherwise adequately taken into consideration by the risk assessmentguidelines, and the court's finding of such a factor must be supported by clear and convincingevidence (see People v Cruz, 28AD3d 819, 819 [2006]; People vKwiatkowski, 24 AD3d 878, 879 [2005]; People v Mount, 17 AD3d 714, 715 [2005]). Here, several factorsexist which reveal that the risk assessment instrument does not adequately portray defendant'scircumstances.[*2]
While defendant was given points for a prior violentfelony, the risk assessment instrument does not reflect the circumstances of that conviction forburglary in the first degree, whereby defendant entered a home and threatened a teenager with aknife while dressed in his underwear and a ski mask. Nor were additional points assessed fordefendant's separate conviction of public lewdness. Each of these crimes, while not a sex offensefor registration purposes (see Correction Law § 168-a [2]), has a sexualcomponent. Although defendant was not assessed any points for having an inappropriate livingenvironment, his intended residence after his release from prison was the trailer park where hecommitted not only the current offenses, but his prior burglary and act of public lewdness. Pointswere assessed for defendant's failure to accept responsibility, but his presentence investigationreport reveals that he also failed to acknowledge that he committed the acts leading to his publiclewdness conviction, and was evasive regarding the circumstances surrounding his burglaryconviction.
The circumstances of his present convictions are also poorly elucidated by the riskassessment instrument. It appears that the Board only considered the attempted rape and sexualabuse convictions, not the endangering the welfare of a child conviction, as the latter does notfall within the definition of a sex offense for registration purposes (see Correction Law§ 168-a [2]). But in this case, defendant's conviction of that offense was based on thepresence of his victim's two children while he forced the victim to the ground, fondled herbreasts and attempted to rape her, with his pants around his knees and his erect penis exposed.The presence of these children, ages four and six at the time, is not reflected in the pointsassessed under the categories for number of victims or age of victim; those categories only reflectone adult victim (compare People vGarrison, 38 AD3d 1099, 1100 [2007]). Based on all of the factors here not taken intoaccount by the risk assessment instrument, an upward departure to risk level three was clearlywarranted.
Mercure, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed,without costs.