| People v Modica |
| 2011 NY Slip Op 00207 [80 AD3d 590] |
| January 11, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v BethModica, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), forrespondent.
Appeals by the defendant from (1) a decision of the County Court, Rockland County (Bartlett, J.),dated March 12, 2010, and (2) an order of the same court entered March 23, 2010, which, after ahearing, designated her a level two sex offender pursuant to Correction Law article 6-C.
Ordered that the appeal from the decision is dismissed, without costs or disbursements, as noappeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]);and it is further,
Ordered that the order is affirmed, without costs or disbursements.
By judgment of the County Court, Rockland County (Bartlett, J.), rendered July 9, 2008, thedefendant was convicted of rape in the third degree and criminal sexual act in the third degree, bothclass E felonies. The charges arose from incidents in the summer of 2007, when the defendant, then 43years old with no prior contact with the criminal justice system, supplied alcohol to and engaged insexual contact with two teenaged boys, ages 15 and 16 respectively.
At issue here is the adjudication of the defendant as a level two sex offender. The Board ofExaminers of Sex Offenders (hereinafter the Board), in examining her risk factors, assessed her with100 points, rendering her presumptively a level two sex offender. However, the Board recommended adownward departure from her presumptive risk level to level one.
The County Court Judge properly declined to recuse herself from hearing the case based uponallegations of bias. Absent a legal disqualification under Judiciary Law § 14, which is not presenthere, the Judge is generally the sole arbiter of recusal, since a decision on whether to recuse herself orhimself is a "discretionary decision . . . within the personal conscience of the court"(People v Moreno, 70 NY2d 403, 405 [1987]; see Matter of Malinda V., 221 AD2d549 [1995]).
There is no dispute that the defendant was properly assessed 100 points, rendering herpresumptively a level two sex offender. A departure from the presumptive risk level is warrantedwhere[*2]"there exists an aggravating or mitigating factor of a kind, orto a degree, that is otherwise not adequately taken into account by the guidelines" (Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Burke, 68 AD3d 1175,1176 [2009]; People v Walker, 47AD3d 692, 693 [2008] [internal quotation marks omitted]). Where the Board recommends adownward departure, there must be clear and convincing evidence that there were mitigating factorsthat were not properly taken into account by the guidelines (see People v Walker, 47 AD3d 692 [2008]). The defendant failed tomeet that burden.
In considering risk factor 2 relating to the sexual contact with the victim, the Board or a court "maychoose to depart downward in an appropriate case and in those instances where (i) the victim's lack ofconsent is due only to inability to consent by virtue of age and (ii) scoring 25 points in this categoryresults in an over-assessment of the offender's risk to public safety" (Sex Offender Registration Act:Risk Assessment Guidelines and Commentary, at 9 [2006]). There is precedent for such a downwarddeparture, where the defendant's age was "not significantly disparate from defendant's" (People vBurke, 68 AD3d at 1176; see People vGoossens, 75 AD3d 1171 [2010]). In the instant case, on the other hand, the defendant wasmore than 25 years older than her victims.
The defendant's remaining contentions are without merit.
Accordingly, the defendant was properly adjudicated a level two sex offender. Skelos, J.P., Eng,Belen and Lott, JJ., concur.