| People v Washington |
| 2011 NY Slip Op 04023 [84 AD3d 910] |
| May 10, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher B. Washington, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), datedMarch 30, 2010, which, after a hearing, designated him a level three sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the County Court, Suffolk County, for further proceedings consistent herewith.
At the defendant's hearing pursuant to the Sex Offender Registration Act (Correction Law art6-C [hereinafter SORA]), the County Court properly assessed the defendant 115 points, whichwas in the range for a presumptive risk level three assessment. The defendant, however, assertedthat his participation and achievement in a prison sex offender treatment program wasexemplary, and that achievement, as well as others in prison, warranted that the County Courtdownwardly depart from that presumptive risk level. The County Court declined to downwardlydepart, on the ground that participation in treatment is adequately taken into consideration in thecategories related to acceptance of responsibility and conduct while incarcerated. This was error.
When the SORA Guidelines and Commentary were first promulgated in 1997, they did nottake into account an offender's response to treatment, despite the specific command in SORAitself that treatment be considered. In Correction Law § 168-l, which establishesthe Board of Examiners of Sex Offenders (hereinafter the Board), the Legislature provided that"[t]he Board shall develop guidelines and procedures to assess the risk of a repeat offense,"which "shall be based upon, but not limited to, the following: . . . (f) the sexoffender's response to treatment" (Correction Law § 168-1 [5] [f]).
In drafting the Guidelines, however, the Board expressly rejected routine consideration of anoffender's response to treatment. In the Appendix to the Guidelines and Commentary, the Boardnoted that a panel of experts reviewed the proposed guidelines and made recommendations, oneof which is relevant to the case at bar: "the panelists encouraged skepticism toward treatment,recommending that an offender's participation in a treatment program, by itself, should notreduce his risk level. The Board accepted this recommendation" (Sex Offender Registration Act:Risk Assessment Guidelines and Commentary, at 24 [2006]). Thus, as the Board explained in itsCommentary to the Guidelines, it "initially considered having a separate category for whether theoffender was in a treatment program. Because the efficacy of sex offender treatment is open toquestion, this approach was rejected (Kaul 1993 [Sex offenders—cure ormanagement?, Med Sci Law, vol 33, No. 3, at 207-212 (1993)]; Marshall, Laws & Barbaree1990 [Present status and future directions, in Marshall, Laws and Barbaree (editors),Handbook of Sexual Assault (New York: Plenum Press 1990)]). An offender's response totreatment, if exceptional, can be the basis for a downward departure" (Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary, at 17 [2006]).
Inasmuch as the County Court held, as a legal matter, that treatment is adequately taken intoaccount in the Guidelines, it did not assess whether the defendant's response to treatment wasexceptional and, if so, whether, as a discretionary matter, a downward departure was appropriate.We therefore remit the matter to the County Court, Suffolk County, for the court to make thatassessment and, in the event the County Court determines that the defendant's response totreatment was exceptional, whether, in the court's discretion, a downward departure is warranted.We express no opinion as to either issue. Dillon, J.P., Balkin, Leventhal and Hall, JJ., concur.