| People v Reynolds |
| 2009 NY Slip Op 09447 [68 AD3d 955] |
| December 15, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kenneth Reynolds, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Andrew Fukudaof counsel), for respondent.
Appeal by the defendant from an order of the County Court, Nassau County (Calabrese, J.),rendered November 24, 2008, 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, Nassau County, for a new hearing and determination inaccordance herewith.
The defendant was convicted on July 26, 2004 of sexual abuse in the first degree, a class Dviolent felony sex crime under Penal Law § 130.65 (1). On November 24, 2008 a hearingwas held to determine the defendant's risk level pursuant to the Sex Offender Registration Act(see Correction Law art 6-C [hereinafter SORA]). The County Court designated thedefendant a level three sex offender based on a presumptive override for a prior felonyconviction of a sex crime.
The County Court concluded, incorrectly, that the application of a presumptive override,based upon the defendant's prior felony conviction of a sex crime, was mandatory and that thecourt did not have discretion to depart from the automatic override which placed the defendant inthe risk level three category. Although the defendant made it clear that he was seeking adownward departure, his counsel stated on the record: "What I explained to my client is that thisisn't a departure. He can't get a level two under a mandatory override. There is no choice basedon the fact he had a prior felony conviction for a sexual crime. It's mandatory, required by law;that we can't get level two even if we want to." Thereafter, in response to the defendant'sapplication for a level two risk assessment, the court stated that it had no choice because it was a"mandatory override."
Although the defendant's prior felony conviction of a sex crime raised his presumptive risklevel from level two to level three (see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 3-4 [2006]), the court is not mandated to apply the override butmay, in appropriate circumstances, impose a lower risk level than that suggested by the riskassessment instrument (hereinafter RAI) where the court concludes that the factors in the RAI donot result in an appropriate designation (see People v Mingo, 12 NY3d 563 [2009];People v Sanchez, 20 AD3d 693, 694 [2005]).[*2]
"The risk level calculated from aggregating the. . . overrides is 'presumptive' because the Board or court may depart from it ifspecial circumstances warrant. The ability to depart is premised on a recognition that anobjective instrument, no matter how well designed, will not fully capture the nuances of everycase. Not to allow for departures would, therefore, deprive the Board or a court of the ability toexercise sound judgment and to apply its expertise to the offender" (Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary, at 4 [2006]). Thus, the role of the court is toexamine all relevant evidence and not merely adopt the recommendation set forth in the RAI(see People v Sanchez, 20 AD3d at 694).
The court's failure to correct defense counsel's erroneous characterization of the override asmandatory rather than presumptive, and the court's failure to apply the correct "presumptive"standard, deprived the defendant of the opportunity to present mitigating circumstances insupport of his application for a downward departure (see Sex Offender Registration Act:Risk Assessment Guidelines and Commentary, at 4 [2006]).
Under these circumstances, the matter must be remitted to the County Court, Nassau County,for a new hearing and determination at which the court shall indicate on the record its findings offact and conclusions of law.
In light of this determination, the defendant's remaining contentions need not be addressed.Rivera, J.P., Dillon, Miller and Roman, JJ., concur.