| People v Johnson |
| 2009 NY Slip Op 08525 [67 AD3d 1206] |
| November 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JohnnyJohnson, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Rose, J. Appeal from an order of the County Court of Sullivan County (LaBuda, J.), enteredMarch 27, 2006, which classified defendant as a risk level three sex offender pursuant to the SexOffender Registration Act.
In 2002, defendant was sentenced to a prison term of five years and five years of postreleasesupervision after pleading guilty to one count of rape in the first degree based upon havingsexual intercourse with a 12-year-old girl. Prior to his release from prison, the Board ofExaminers of Sex Offenders prepared a risk assessment instrument which presumptivelyclassified defendant as a risk level two sex offender (95 points) in accordance with the SexOffender Registration Act (see Correction Law art 6-C). Nevertheless, the Boardrecommended an upward departure to risk level three status as a result of defendant's convictionfor endangering the welfare of a child, which was based on inappropriate sexual behavior andencompassed acts performed after those leading to his conviction for rape. Following a riskassessment hearing, County Court determined that defendant was a sexually violent offender andplaced him in the risk level three classification. Defendant now appeals.
We must reverse. Although a departure from the presumptive risk level may be warrantedwhen an aggravating or mitigating factor exists that is not adequately taken into account by theguidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and [*2]Commentary, at 4 [2006]), such special circumstances must beproven by clear and convincing evidence (see People v Miranda, 24 AD3d 909, 910 [2005]). Moreover,County Court is required to "render an order setting forth its determinations and the findings offact and conclusions of law on which the determinations are based" (Correction Law §168-n [3]). Here, despite evidence in the record indicating that an upward departure might bewarranted, the People offered no proof of such and County Court's findings in that regard areinsufficiently detailed to permit intelligent appellate review (cf. People v Roberts, 54 AD3d 1106, 1106-1107 [2008], lvdenied 11 NY3d 713 [2008]). County Court's sole articulated rationale for its determinationwas a section of the presentence investigation report which described the events leading todefendant's rape conviction. Inasmuch as that crime was adequately covered by the riskassessment instrument, however, it cannot be considered an aggravating factor (see People vRoberts, 54 AD3d at 1107).
Finally, we are unpersuaded by the People's argument that defendant failed to preserve theissue. Defendant challenged the proposed elevation of his classification to risk level three andhad no reason to anticipate that County Court would focus solely upon his original offense (cf. People v Oginski, 35 AD3d952, 953 [2006]). Accordingly, the matter must be remitted for the court's issuance offindings of fact and conclusions of law as to whether defendant's subsequent conviction forendangering the welfare of a child warrants an upward departure from his presumptiveclassification as a risk level two sex offender (see People v Marr, 20 AD3d 692, 693 [2005]).
Mercure, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order isreversed, on the law, without costs, and matter remitted to the County Court of Sullivan Countyfor further proceedings not inconsistent with this Court's decision.