| People v Jackson |
| 2010 NY Slip Op 01176 [70 AD3d 1385] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Dale L.Jackson, Appellant. |
—[*1] Barry L. Porsch, District Attorney, Waterloo, for respondent.
Appeal from an order of the Seneca County Court (Dennis F. Bender, J.), dated June 8, 2009.The order determined that defendant is a level two risk pursuant to the Sex Offender RegistrationAct.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level two risk pursuant tothe Sex Offender Registration Act (Correction Law § 168 et seq.), defendantcontends that County Court erred in assessing 20 points against him under risk factor 6, based onthe victim's mental disability, and 20 points against him under risk factor 7, for establishing arelationship with the individual in question for the purpose of victimizing him. We reject thatcontention, and we conclude that the court properly determined that defendant waspresumptively a level two risk. The People presented clear and convincing evidence establishingthat the mental condition of the victim was such that he was incapable of appraising the nature ofhis own conduct, particularly with respect to the foreplay activities in which he participated(Penal Law § 130.00 [5]), and that the victim did not understand the social and moralimplications of such sexual activity (see generally People v Cratsley, 86 NY2d 81, 87-88[1995]; People v Easley, 42 NY2d 50, 55-57 [1977]). The People further established byclear and convincing evidence that defendant entered into his relationship with the victim for theprimary purpose of victimizing him.
Contrary to defendant's further contention, the court did not abuse its discretion in refusingto grant defendant a downward departure from his presumptive risk level based on his age andthe fact that he had been released from prison in Iowa without further required sex offendertreatment. Age alone does not warrant a downward departure (see People v Stewart, 63 AD3d1588 [2009], lv denied 13 NY3d 704 [2009]). In addition, defendant's release fromprison without the requirement that defendant obtain further sex offender treatment was based onthe results of a polygraph examination administered to defendant just prior to his release inwhich he portrayed himself to be innocent, but the results of a polygraph examination areinadmissible in New York based on their unreliability (see People v Shedrick, 66 NY2d1015, 1018 [1985], rearg denied 67 NY2d 758 [1986]; People v DeLorenzo, 45 AD3d1402 [2007], lv denied 10 NY3d 763 [2008]; People v Weber, 40 AD3d 1267 [2007], lv denied 9 NY3d927 [2007]). Furthermore, [*2]the claims of innocence bydefendant at the polygraph examination were directly contrary to his admissions of guilt at theIowa trial. Present—Scudder, P.J., Centra, Carni and Pine, JJ.