| People v Miller |
| 2008 NY Slip Op 04581 [51 AD3d 1298] |
| May 22, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jody A.Miller, Appellant. |
—[*1] James Sacket, District Attorney, Schoharie (Thomas F. Garner of counsel), forrespondent.
Kane, J. Appeal from an order of the County Court of Schoharie County (Bartlett III, J.),entered August 10, 2007, which classified defendant a risk level three sex offender pursuant tothe Sex Offender Registration Act.
Defendant pleaded guilty in 1997 to rape in the first degree in satisfaction of an indictmentwhich also charged a second count of rape in the first degree and endangering the welfare of achild. He was sentenced to 5 to 10 years in prison. Prior to his scheduled release in August 2007,the Board of Examiners of Sex Offenders evaluated defendant and classified him a presumptiverisk level three sex offender pursuant to the Sex Offender Registration Act (seeCorrection Law art 6-C). A hearing was conducted before County Court, at the conclusion ofwhich the court adopted the Board's recommendation and classified defendant a risk level threesex offender. Contending that County Court abused its discretion in not modifying his risk levelthree classification downward, defendant now appeals.
A departure from a presumptive risk level is warranted where "there exists an aggravating ormitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account bythe guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at4 [2006]; see People v Roe, 47AD3d 1156 [2008], lv denied 10 NY3d 707 [2008]; People v Kaminski, 38 AD3d1127, 1128 [2007], lv denied 9 NY3d 803[*2][2007];People v Mothersell, 26 AD3d620, 621 [2006]). The question of whether a departure is warranted is committed to thesound discretion of the classifying court (see People v Roe, 47 AD3d at 1156; People v Warren, 42 AD3d 593,595 [2007], lv denied 9 NY3d 810 [2007]; People v Kaminski, 38 AD3d at 1128;People v Mothersell, 26 AD3d at 621). Defendant does not directly contest the pointsassigned for refusing treatment and for unsatisfactory conduct while confined, but argues thatCounty Court should have downwardly modified his risk level three classification due to theunderlying circumstances. However, the record demonstrates—and defendantconcedes—that, while he did complete a single, limited sex offender treatment program, hewas removed from a second program for poor performance and thereafter refused to participatein additional recommended programs. Furthermore, he was indisputably found guilty of a tier IIIdisciplinary violation just months prior to his scheduled release although the disposition was insome respects favorable to defendant. It is clear from the record that County Court considered thecircumstances of defendant's refusal of treatment and tier III disciplinary violation and we cannotconclude that it abused its discretion by not downwardly departing from defendant's presumptiverisk level (see People v Roe, 47 AD3d at 1156; People v Kaminski, 38 AD3d at1128; People v Mothersell, 26 AD3d at 621).
Cardona, P.J., Peters, Carpinello and Stein, JJ., concur. Ordered that the order is affirmed,without costs.