| People v Johnson |
| 2007 NY Slip Op 09830 [46 AD3d 1032] |
| December 13, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Clifford A.Johnson, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Cheryl A. Mancini of counsel), forrespondent.
Mugglin, J. Appeal from an order of the County Court of Broome County (Mathews, J.),rendered October 2, 2006, which classified defendant a risk level III sex offender pursuant to theSex Offender Registration Act.
Defendant pleaded guilty in 2004 to the crime of rape in the third degree arising frommultiple sexual encounters with a 16-year-old girl. In anticipation of defendant's release fromprison, the Board of Examiners of Sex Offenders evaluated defendant and he was assigned 95points on the risk assessment instrument, which would presumptively place him at a risk level IIclassification. However, defendant's 1994 felony convictions of rape in the first degree, sodomyin the first degree and sexual abuse in the first degree presented override factors whichpresumptively placed him at a risk level III classification. A hearing was convened, at theconclusion of which County Court adopted the Board's recommendation and classified defendanta risk level III sex offender. Defendant appeals.
At the hearing in County Court, defendant's counsel argued that defendant's prior convictionshad already been scored against him by the addition of 30 points for risk factor 9 on the riskassessment instrument and, therefore, it would be improper for County Court to "double count"this conviction as an override factor. That argument is the premise for defendant's appellateargument that the court's risk assessment is not supported by clear and convincing [*2]evidence. We disagree and affirm.
"[W]hen an offender has a prior felony sex crime conviction, it is an automatic override to alevel 3 risk . . . Because there is no mechanism in the instrument to scoreadequately a prior felony sex offense conviction and it is considered an automatic level 3 risk, aprior felony sex offense conviction is scored conservatively at only 30 points. However, in allcases where there is a prior felony sex offense conviction, the companion score is overridden bythe Board and the Board recommendation is an automatic override to risk level 3, unless there issome cause for departure from that level" (Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, Guidelines, factor 9 [3] [2006]). Thus, defendant's"double-counting" argument is explicitly addressed and refuted by the guidelines when the priorfelony is a sex crime. "Any downward departure from a presumptive risk level must be supportedby clear and convincing evidence of mitigating circumstances" (People v Mabb, 32 AD3d 1135,1135 [2006] [citations omitted]). Here, no such evidence is presented.
Mercure, J.P., Spain, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed,without costs.