| People v Barnett |
| 2010 NY Slip Op 02034 [71 AD3d 1296] |
| March 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Clifton M.Barnett, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Stein, J. Appeal from an order of the County Court of Broome County (Smith, J.), enteredDecember 1, 2008, which classified defendant as a risk level three sex offender pursuant to theSex Offender Registration Act.
In April 2006 defendant, then 19 years old, pleaded guilty to sexual misconduct and wassentenced to six years of probation. The conduct underlying that conviction stemmed fromdefendant having sexual intercourse with his then 15-year-old victim. While that matter waspending, defendant entered into a relationship with a 14-year-old female and, on three occasionsduring 2006, including the morning of his plea and sentencing on the sexual misconduct charge,engaged in sexual intercourse and deviate sexual intercourse with that victim. Defendantthereafter pleaded guilty in December 2006 to one count of rape in the second degree and wassentenced to a prison term of 1
In anticipation of defendant's conditional release from prison, the Board of Examiners of SexOffenders prepared a risk assessment instrument that presumptively classified defendant as a risklevel three sex offender (145 points) under the Sex Offender Registration Act (seeCorrection Law art 6-C). At the hearing that followed, defendant did not dispute the pointsassessed in each category of the risk assessment instrument but did argue that a downwarddeparture was [*2]warranted. County Court denied defendant'srequest and classified defendant as a risk level three sex offender, prompting this appeal.
We affirm. A departure from the presumptive risk level classification is warranted onlywhere "there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwisenot adequately taken into account by the guidelines" (Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 4 [2006]; see People v Miller, 51 AD3d 1298, 1299 [2008], lvdenied 11 NY3d 703 [2008]; People v McCormick, 21 AD3d 1221, 1222 [2005]). The questionof whether such factor exists rests within the sound discretion of County Court (see People v Roe, 47 AD3d 1156[2008], lv denied 10 NY3d 707 [2008]), and clear and convincing evidence of a specialcircumstance must exist in order to warrant the requested modification (see People vMcCormick, 21 AD3d at 1222).
Here, defendant contends that a downward modification is warranted due to the lack offorcible compulsion and the age difference between him and his victim. The lack of forciblecompulsion, however, was adequately taken into account by the risk assessment instrument,which assessed no points for this factor. As for the perceived closeness in age between defendantand his victim, we need note only that the two cases cited by defendant in support of hismodification request on this ground—People v Brewer (63 AD3d 1604 [2009]) and People v Weatherley (41 AD3d1238 [2007])—are readily distinguishable, in that each of those cases involved adefendant who had committed his first sex offense and was enrolled in sex offender counselingat the time of the underlying hearing. As defendant here engaged in one sex crime while awaitingplea and sentencing on another, we cannot say that County Court erred in concluding that adownward departure was unwarranted. Defendant's remaining contentions have been examinedand found to be lacking in merit.
Cardona, P.J., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order isaffirmed, without costs.