| People v Johnson |
| 2010 NY Slip Op 07291 [77 AD3d 1039] |
| October 14, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Johnny Johnson,Respondent. |
—[*1] Aaron A. Louridas, Schenectady, for respondent.
Rose, J. Appeal from an order of the County Court of Sullivan County (LaBuda, J.), enteredJanuary 25, 2010, which classified defendant as a risk level one sex offender pursuant to the SexOffender Registration Act.
In 2002, defendant pleaded guilty to rape in the first degree and was sentenced to a prisonterm of five years followed by five years of postrelease supervision. The Board of Examiners ofSex Offenders thereafter prepared a risk assessment instrument that presumptively classifieddefendant as a risk level two sex offender in accordance with the Sex Offender Registration Act(see Correction Law art 6-C). Following a hearing, County Court granted the Board'srequest for an upward departure and classified defendant as a risk level three sex offender. Uponappeal, this Court reversed, finding that "County Court's findings in that regard [were]insufficiently detailed to permit intelligent appellate review," and remitted the matter to CountyCourt for further proceedings (People vJohnson, 67 AD3d 1206, 1207 [2009]). After conducting a new hearing, at whichdefendant submitted additional evidence, County Court granted defendant's request for adownward departure and classified defendant as a risk level one sex offender. This appeal by thePeople ensued.
To the extent that the People contend that County Court exceeded the scope of this [*2]Court's remittal by conducting a new hearing, we need note onlythat the People, having raised no objection to either the hearing itself or the proof received intoevidence on defendant's behalf, cannot now be heard to complain. Turning to the merits, it is wellsettled that "a downward departure is only warranted where there exist mitigating factors notadequately taken into account by the Board's risk assessment guidelines" (People v Roe, 47 AD3d 1156,1156 [2008], lv denied 10 NY3d 707 [2008]; see People v Barnett 71 AD3d 1296, 1297 [2010]; People v Mothersell, 26 AD3d620, 621 [2006]). Further, the question of whether to grant a downward modification is amatter left to the classifying court's sound discretion (see People v King, 72 AD3d 1363, 1364 [2010]; People v Kaminski, 38 AD3d1127, 1128 [2007], lv denied 9 NY3d 803 [2007]).
Here, the People are correct in noting that defendant's acceptance of responsibility and hissuccessful discharge from a sex offender treatment program are circumstances alreadyencompassed by the risk assessment instrument. However, the additional documentation receivedat the new hearing, including letters from personnel involved in defendant's outpatient treatmentprogram, establishes that defendant not only has developed a sound relapse prevention plan buthas continued to participate in the outpatient program's group discussions "solely to help otheroffenders." Additionally, defendant has voluntarily continued his drug and alcohol treatment,resulting in an extended period of sobriety. Further, a risk assessment conducted by personnel atthe outpatient program placed defendant at a very low risk of reoffending. Finally, defendantspoke at length at the hearing regarding his rehabilitative efforts and his work with variousprograms aimed at assisting other offenders. County Court plainly was impressed withdefendant's work with other offenders and the progress defendant had made, and found suchefforts sufficient to warrant the requested downward departure. Under the particular facts of thiscase, we cannot say that County Court's determination constituted an abuse of discretion.Accordingly, the order classifying defendant as a risk level one sex offender is affirmed.
Spain, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.