| People v Martin |
| 2010 NY Slip Op 09113 [79 AD3d 717] |
| December 7, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v Roy A.Martin, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Dutchess County (Hayes, J.), datedMay 31, 2006, which, after a hearing, designated him a level three sex offender pursuant to CorrectionLaw article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
A court has the discretion to depart from the presumptive risk level, as determined by use of therisk assessment instrument, based upon the facts in the record (see People v Bowens, 55 AD3d 809, 810 [2008]; People v Taylor, 47 AD3d 907, 907[2008]; People v Burgos, 39 AD3d520, 520 [2007]; People v Hines,24 AD3d 524, 525 [2005]). However, "utilization of the risk assessment instrument will generally'result in the proper classification in most cases so that departures will be the exception not the rule' "(People v Guaman, 8 AD3d 545[2004], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4[Nov. 1997]; see People v Bowens, 55 AD3d at 810; People v Taylor, 47 AD3d at908; People v Burgos, 39 AD3d at 520; People v Hines, 24 AD3d at 525). The RiskAssessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders"contain four 'overrides' that automatically result in a presumptive risk assessment of level 3" (SexOffender Registration Act: Risk Assessment Guidelines and Commentary, at 3 [2006]). The Peoplebear the burden of proving the applicability of a particular override by clear and convincing evidence(see Correction Law § 168-n [3]; see also People v King, 74 AD3d 1162 [2010]; People v Chandler, 48 AD3d 770,771-772 [2008]; People v Thompson,34 AD3d 661, 661-662 [2006]).
Here, the County Court found that the People established the existence of the fourth override, thatthere exists "a clinical assessment that the offender has a psychological, physical, or organic abnormalitythat decreases his ability to control impulsive sexual behavior" (Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 4 [2006]), thus automatically resulting in a presumptiverisk assessment of level three. However, as the defendant correctly claims, in expressly finding that thePeople established the applicability of the fourth override by a preponderance of the evidence, the courtfailed to hold the People to the proper burden of proof, which is proof by clear and convincingevidence (see Correction Law § 168-n [3]; see also People v King, 74 AD3d 1162 [2010]; People vChandler, 48 AD3d at 771-772; People v Thompson, 34 AD3d at 661-662).Nonetheless, where, as here, the record is sufficient, this Court may make its own findings [*2]of fact and reach its own conclusions of law (see People v King, 74 AD3d 1162[2010]; People v Rivera, 73 AD3d881 [2010]; People v Lyons, 72AD3d 776, 776 [2010]; People vMcKee, 66 AD3d 854, 854 [2009]; People v Ashby, 56 AD3d 633, 633 [2008]; People v Liguori, 48 AD3d 773[2008]). We find that the People established by clear and convincing evidence the applicability of thefourth override, that there has been "a clinical assessment that the offender has a psychological,physical, or organic abnormality that decreases his ability to control impulsive sexual behavior" (SexOffender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]), and that, byoperation of the override, the defendant was presumptively a level three sex offender. To the extent thedefendant sought a downward departure from the level three determination resulting from the automaticoverride, the defendant failed to present clear and convincing evidence of the existence of specialcircumstances to warrant a downward departure. Rivera, J.P., Dickerson, Lott and Roman, JJ.,concur.