| People v Kraus |
| 2007 NY Slip Op 09380 [45 AD3d 826] |
| November 27, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Thomas Kraus, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee,and Morgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Hall, J.), datedNovember 21, 2005, which, after a hearing, designated him a level three sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Supreme Court, Kings County, for a new determination.
The defendant sexually assaulted his former job counselor. At the hearing pursuant to theSex Offender Registration Act (hereinafter SORA), the Supreme Court assessed the defendant 20points under risk factor 7 of the SORA Guidelines because the offense "arose in the context of aprofessional relationship between the offender and the victim and was an abuse of [that]relationship" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at12 [1997 ed]). The defendant asserts that this assessment was erroneous, and the People nowagree. So do we. As the commentary to the SORA Guidelines makes clear, this risk factor isconcerned with the abuse of trust attending professional relationships and contemplates thesituation where the professional is the offender: "the abuse of a professional relationship [ ]reaches health care providers and others who exploit a professional relationship to victimizethose who repose trust in them. A dentist who sexually abuses his patient while [the patient] isanesthetized would fall squarely in this category" (id.). The situation here, where theoffender was a former client of the professional, simply is not contemplated by this risk factor.
Without the 20 points assessed for risk factor 7, the defendant's presumptive risk [*2]level was level two. And, while the record reveals that thedefendant has a history of mental illness, there was no clinical assessment that it was of a kindthat "decreases his ability to control impulsive sexual behavior" (id. at 17). Thus, therewould have been no basis to find that the defendant was a level three offender based on thisoverride in the SORA Guidelines (seePeople v Orengo, 40 AD3d 609 [2007]; People v Zehner, 24 AD3d 826, 827 n [2005]).
The record of the SORA hearing indicates that the Supreme Court may have believed that anupward departure was appropriate, but it did not articulate any reasons for such a departure. Adeparture from the presumptive risk level is generally only warranted where "there exists anaggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken intoaccount by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 4 [1997 ed]; see Peoplev Burgos, 39 AD3d 520, 520 [2007]). There must be clear and convincing evidence of aspecial circumstance to warrant a departure from the presumptive risk level (see People vBurgos, 39 AD3d at 520; People vAgard, 35 AD3d 568 [2006]). Under the unique circumstances of this case, we remit thematter to the Supreme Court, Kings County, for a new determination of the defendant's riskoffender level. Crane, J.P., Fisher, Carni and McCarthy, JJ., concur.