| People v Brewer |
| 2009 NY Slip Op 04548 [63 AD3d 1604] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ChristopherD. Brewer, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal from an order of the Ontario County Court (William F. Kocher, J.), entered April 28,2008. The order determined that defendant is a level three risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from is unanimously modified in the exerciseof discretion by determining that defendant is a level two risk pursuant to the Sex OffenderRegistration Act and as modified the order is affirmed without costs.
Memorandum: We agree with defendant that County Court improvidently exercised itsdiscretion in determining that he is a level three risk under the Sex Offender Registration Act([SORA] Correction Law § 168 et seq.). We therefore substitute our owndiscretion "even in the absence of an abuse [of discretion]" (Matter of Von Bulow, 63NY2d 221, 224 [1984]), and we modify the order by determining that defendant is a level tworisk. Although the record establishes that defendant was presumptively a level three risk pursuantto the risk assessment instrument, we conclude that there is clear and convincing evidence ofspecial circumstances to warrant a downward departure from the presumptive risk level (see People v Weatherley, 41 AD3d1238 [2007]; see also People vSmith, 30 AD3d 1070 [2006]). Defendant was 20 years old when he engaged in theunderlying offense, i.e., sexual activity with a 16-year-old female who admitted that shewillingly engaged in the sexual activity. There was no allegation or evidence of forciblecompulsion. The record further establishes that this was defendant's first and only sex offenseand that defendant was enrolled in sex offender counseling at the time of the SORA hearing. Wethus conclude under the circumstances of this case that defendant is not at a high risk ofreoffending (see Correction Law § 168-l [6] [c]; cf. People v Heichel, 20 AD3d 934[2005]). Present—Hurlbutt, J.P., Martoche, Fahey, Carni and Pine, JJ.