| People v Kearns |
| 2009 NY Slip Op 09800 [68 AD3d 1713] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jeffrey M.Kearns, Appellant. |
—[*1] Susan H. Lindenmuth, District Attorney, Penn Yan, for respondent.
Appeal from an order of the Yates County Court (W. Patrick Falvey, J.), entered August 12,2008. The order determined 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: On appeal from an order determining that he is a level three risk pursuant tothe Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.),defendant contends that County Court erred in assessing 25 points against him under risk factor2, for sexual contact with the victim, and 15 points against him under risk factor 12, for refusalof treatment. We conclude that the court properly determined that defendant was a presumptivelevel three risk but improvidently exercised its discretion in refusing to grant him a downwarddeparture from that risk level. With respect to risk factor 2, we conclude that the swornstatements and the grand jury testimony of one of the two victims constituted reliable hearsay(see People v Parker, 62 AD3d1195, 1196 [2009], lv denied 13 NY3d 704 [2009]), and that the People therebyestablished by clear and convincing evidence that defendant engaged in sexual intercourse withthat victim to support the assessment of 25 points under risk factor 2 (see CorrectionLaw § 168-n [3]; People vEnsell, 49 AD3d 1301 [2008], lv denied 10 NY3d 715 [2008]).
With respect to risk factor 12, it is undisputed that defendant refused to participate in sexoffender treatment while he was incarcerated, but he contends that his refusal was based on theadvice of defense counsel to refrain from participation. According to defendant, his appeal fromthe judgment of conviction was pending when the treatment was offered and, in the event ofreversal on appeal and a subsequent new trial on all counts of the indictment, his participation intreatment would have required him to make admissions against his interest, in violation of hisFifth Amendment privilege against self-incrimination. We note in addition that the riskassessment guidelines do not contain exceptions with respect to a defendant's reasons forrefusing to participate in treatment (see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 16 [2006]).[*2]
We thus agree with defendant that the courtimprovidently exercised its discretion in determining that defendant was not entitled to adownward departure from his presumptive risk level. We therefore substitute our own discretion," 'even in the absence of an abuse [of discretion],' " and we modify the order by determining thatdefendant is a level two risk (People vSmith, 30 AD3d 1070, 1071 [2006], quoting Matter of Von Bulow, 63 NY2d221, 224 [1984]; see People vBrewer, 63 AD3d 1604 [2009]). In our view, "there is clear and convincing evidence ofspecial circumstances to warrant a downward departure from the presumptive risk level"(Brewer, 63 AD3d at 1605; see Smith, 30 AD3d at 1071). The professionals whoevaluated defendant all concluded that defendant was not a sexual predator, that he did not haveabnormal sexual tendencies, and that he was not a threat to himself or others. In addition, weagree with defendant that he was faced with a "Hobson's choice" when deciding whether toparticipate in treatment. We thus conclude on the record before us "that there are. . . mitigating factor[s] of a kind or to a degree, not otherwise adequately taken intoaccount by the guidelines" (People vSantiago, 20 AD3d 885, 886 [2005] [internal quotation marks omitted]; seeSmith, 30 AD3d at 1071; Risk Assessment Guidelines and Commentary, at 4).
Contrary to the final contention of defendant, we conclude that he received meaningfulrepresentation at the SORA hearing (see generally People v Baldi, 54 NY2d 137, 147[1981]; People v Reid, 59 AD3d158 [2009], lv denied 12 NY3d 708 [2009]). Present—Hurlbutt, J.P.,Peradotto, Carni, Pine and Gorski, JJ.