| People v Goossens |
| 2010 NY Slip Op 06062 [75 AD3d 1171] |
| July 9, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Carl A.Goossens, Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from an order of the Livingston County Court (Robert B. Wiggins, J.), enteredOctober 22, 2007. The order determined that defendant is a level three risk pursuant to the SexOffender Registration 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: We agree with defendant that County Court improvidently exercised itsdiscretion in determining that he is a level three risk pursuant to the Sex Offender RegistrationAct (Correction Law § 168 et seq.). We therefore "substitute [our] own discretioneven in the absence of an abuse" by the court (Matter of Von Bulow, 63 NY2d 221, 224[1984]), and we modify the order by determining that defendant is a level two risk. Althoughdefendant was presumptively classified as a level three risk pursuant to the risk assessmentinstrument, we conclude based on the record before us that there is "clear and convincingevidence of the existence of special circumstance[s] to warrant [a] . . . downwarddeparture" from the presumptive risk level (People v Guaman, 8 AD3d 545 [2004]). Defendant, who was 21years old at the time of the underlying offense, engaged in sexual activity with a 15-year-oldfemale. The court found that the victim was a willing participant in the sexual activity and thatshe had been supportive of defendant throughout the proceedings (see People v Brewer, 63 AD3d1604 [2009]; People vWeatherley, 41 AD3d 1238 [2007]). Indeed, "[t]here was no allegation or evidence offorcible compulsion" (Brewer, 63 AD3d at 1605). Moreover, the underlying convictionwas defendant's first felony conviction. Although defendant had previously been convicted of amisdemeanor sex offense, that offense involved the same victim, who is defendant's girlfriend.We thus conclude under the circumstances of this case that defendant did not have a high risk ofreoffending (see Correction Law § 168-l [6]; Brewer, 63 AD3d1604 [2009]; cf. People v Heichel,20 AD3d 934, 935 [2005]). In light of our determination, we do not address defendant'sremaining contentions. Present—Centra, J.P., Peradotto, Carni, Pine and Gorski, JJ.