| People v Carlton |
| 2010 NY Slip Op 08476 [78 AD3d 1654] |
| November 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James D. Carlton,Appellant. |
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Appeal from an order of the Ontario County Court (Frederick G. Reed, J.), entered July 27, 2009.The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant to the SexOffender Registration Act (Correction Law § 168 et seq.), defendant contends thatCounty Court erred in failing to set forth its findings of fact and conclusions of law, as required byCorrection Law § 168-n (3). Although defendant is correct that the court failed to do so, wenevertheless conclude that the record before us is sufficient to enable us to make our own findings offact and conclusions of law, thus rendering remittal unnecessary (see People v Urbanski, 74 AD3d 1882 [2010], lv denied 15NY3d 707 [2010]; cf. People vLeopold, 13 NY3d 923 [2010]).
We reject the further contention of defendant that the court erred in assessing 20 points against himunder the risk factor for his relationship with the victims and 25 points against him under the risk factorfor drug or alcohol abuse. Based on the record before us, we conclude that the People established bothof the disputed risk factors by the requisite clear and convincing evidence (see Correction Law§ 168-n [3]). With respect to defendant's relationship with the victims, the case summaryestablishes that, when interviewed by the Board of Examiners of Sex Offenders, defendant stated thathe was employed as a bus driver of mentally disabled women at the time of the underlying crimes andthat he selected the three victims because he believed they were incapable of reporting his crimes. Suchevidence establishes that defendant had a professional relationship with the three victims, thus justifyingthe assessment of 20 points with respect to that risk factor (see generally People v Stein, 63 AD3d 99, 101-102 [2009]).
Further, with respect to defendant's history of drug and alcohol abuse, the presentence reportestablishes that defendant began drinking alcohol at age 11 and using marihuana at age 14 and that heused LSD and "angel dust" for a period of approximately seven years. Defendant also reported that hewas addicted to cocaine, marihuana and alcohol. Those facts constitute clear and convincing evidenceof defendant's history of drug and alcohol abuse, thus justifying [*2]theassessment of 25 points with respect to that risk factor (see Urbanski, 74 AD3d 1882, 1883;see also People v Guitard, 57 AD3d751 [2008], lv denied 12 NY3d 704 [2009]).All concur except Martoche and Centra, JJ., who dissent and vote to modify in accordance withthe following memorandum.
Martoche and Centra, JJ. (dissenting). We respectfully dissent because we conclude that, followinga hearing pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 etseq.), County Court erred in assessing 20 points against defendant under risk factor 7, for hisrelationship with the victims. Defendant was convicted of sexual crimes against three mentally disabledwomen when he was their bus driver. The Risk Assessment Guidelines assess 20 points under riskfactor 7 "if the offender's crime (i) was directed at a stranger or a person with whom a relationship hadbeen established or promoted for the primary purpose of victimization or (ii) arose in the context of aprofessional or avocational relationship between the offender and the victim and was an abuse of suchrelationship" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 12[2006]). The Risk Assessment Guidelines advise that, in each of those situations, "there is a heightenedconcern for public safety and need for community notification" (id.). Here, the court assessed20 points against defendant after determining that defendant was in "an avocational profession."
Here, the first category under risk factor 7 is not applicable. Defense counsel and the Peopleagreed at the SORA hearing that the crimes were not directed at strangers, and there was no evidencethat defendant became a bus driver to gain access to the victims to abuse them. With respect to thesecond category, we note that the risk assessment guidelines do not define a "professional oravocational relationship," but they provide that the second category "reaches health care providers andothers who exploit a professional relationship in order to victimize those who repose trust in them. Adentist who sexually abuses his [or her] patient while the patient is anesthetized would fall squarelywithin [that] category" (Risk Assessment Guidelines and Commentary, at 12). We cannot agree withthe majority that defendant had a professional relationship with the victims to justify the assessment of20 points under risk factor 7. Black's Law Dictionary defines a "professional relationship" as "[a]nassociation that involves one person's reliance on the other person's specialized training. . . Examples include one's relationship with a lawyer, doctor, insurer, banker, and thelike" (Black's Law Dictionary 1402 [9th ed 2009]). Although a passenger on a bus certainly places hisor her trust in the bus driver and relies to a certain extent on the bus driver's training, such a relationshipor association is not akin to that of a health care provider and his or her patient. There is no indicationthat the victims here or their caretakers sought out defendant based on his bus driving skills, as would aperson seeking the services of a health care provider or other such professional.
We disagree with the court to the extent that it concluded that defendant and the victims were in anavocational relationship. That term is not defined in the risk assessment guidelines, but "avocation"customarily refers to a hobby or occupation pursued outside of a person's regular work (seeAmerican Heritage Dictionary 124 [4th ed 2002]; Webster's Third New International Dictionary 151[2002]; see also Owen v R.J.S. Safety Equip., 169 AD2d 150, 155 [1991], affd 79NY2d 967 [1992]). While avocation is also defined as a person's regular employment (seeAmerican Heritage Dictionary 124; Webster's Third New International Dictionary 151), we cannotconclude that the term "avocational" relationship under risk factor 7 encompasses that lesser-knowndefinition. In the event that it did, there would be no need for the Risk Assessment Guidelines toreference a "professional" relationship because all avocational relationships would encompassprofessional relationships.
Thus, we conclude that defendant should be assessed zero points under risk factor 7, therebyreducing his score to 100 points and rendering him a presumptive level two risk. We would thereforemodify the order by determining that defendant is a level two risk. Present—Scudder, P.J.,Martoche, Centra, Fahey and Green, JJ.