| People v Chandler |
| 2008 NY Slip Op 01726 [48 AD3d 770] |
| February 26, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jeremiah Chandler, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (J. Doyle, J.),dated January 31, 2007, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the County Court, Suffolk County, for a reopened hearing and a new determinationin accordance herewith.
The defendant, upon a plea of guilty, was convicted of sexual abuse in the first degree. Inevaluating the defendant for registration as a sex offender, the New York State Board ofExaminers of Sex Offenders (hereinafter the Board) assessed the defendant as a presumptivelevel two sex offender based upon a total risk factor score on the risk assessment instrument(hereinafter the RAI) of 75 points. The Board, however, recommended an upward departure fromlevel two to level three. In the case summary, the Board reported that the defendant, whileincarcerated for the instant offense, had been diagnosed by the New York State Department of[*2]Corrections, Mental Health Unit (hereinafter the DOCMHU),as suffering from impulse control disorder and mild mental retardation. Thus, the Boardconcluded that an upward departure was warranted because the defendant "is at an age where hishormones will challenge his intellectual capacity to handle sexual impulses." After a hearingpursuant to the Sex Offender Registration Act (hereinafter SORA), the County Court, relying onthe case summary, the presentence investigation report prepared by the Suffolk CountyDepartment of Probation dated November 1, 2004 (hereinafter the PSI), and the RAI, designatedthe defendant a level three sex offender. Notably, however, the PSI also set forth a lengthypsychiatric history of the defendant, which included 1997 diagnoses of various disorders otherthan those made by the DOCMHU, including, inter alia, attention deficit hyperactivity disorder,dysthmic disorder, borderline intellectual functioning, borderline personality traits, and bipolardisorder. The defendant appeals.
The record of the SORA hearing indicates that the County Court may have believed that anupward departure was appropriate based upon the defendant's mental history, but the court failedto articulate its reasons for such a departure by setting forth "the findings of fact and conclusionsof law on which the determinations [were] based" (Correction Law § 168-n [3]; seePeople v Villane, 17 AD3d 336 [2005]). In any event, a departure from the presumptive risklevel is generally only warranted where "there exists an aggravating or mitigating factor of akind, or to a degree, that is otherwise not adequately taken into account by the guidelines" (SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006 ed][hereinafter the SORA Guidelines]; see People v Burgos, 39 AD3d 520 [2007]). TheSORA Guidelines already provide, in the fourth override factor, for an automatic override to apresumptive level three designation where "[t]here has been a clinical assessment that theoffender has a psychological, physical, or organic abnormality that decreases his [or her]ability to control impulsive sexual behavior." (SORA Guidelines at 3-4, 19 [emphasisadded]; see People v Kraus, 45 AD3d 826 [2007]; People v Orengo, 40 AD3d609, 610 [2007]; see also People v Burgos, 39 AD3d 520, 520-521 [2007].) The SORAGuidelines further note that "the Board chose to require a clinical assessment of an abnormalityso that loose language in a pre-sentence report would not become the basis for anoverride."(Id. at 19.)
Here, while the record reveals that the defendant has a history of mental illness, there was noclinical assessment stating that it was of a kind that "decreases his ability to control impulsivesexual behavior." Thus, on this record, the court's level three designation, in effect, based on thefourth override, was not supported by clear and convincing evidence (see People v Kraus,45 AD3d 826 [2007]; People v Burgos, 39 AD3d 520, 520-521 [2007]; People vZehner, 24 AD3d 826, 827 n [2005]; cf. People v Orengo, 40 AD3d 609 [2007]).However, given that the diagnosis by the DOCMHU may have constituted some evidence thatthe impulse control disorder is causally related to a risk of reoffense, we remit the matter to theCounty Court, Suffolk County, to reopen the SORA hearing for the sole purpose of providing theparties the opportunity to submit evidence regarding the application of the fourth override and fora redetermination of the defendant's risk offender level thereafter. Skelos, J.P., Fisher, Dillon andMcCarthy, JJ., concur.