| People v Freeman |
| 2011 NY Slip Op 04783 [85 AD3d 1335] |
| June 9, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GermaineFreeman, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Spain, J. Appeal from an order of the County Court of Columbia County (Nichols, J.),entered June 16, 2009, which classified defendant as a risk level two sex offender pursuant to theSex Offender Registration Act.
Defendant pleaded guilty in January 2008 to rape in the third degree based on his admissionto having sexual intercourse at the age of 33 with a 15-year-old girl, and he was sentenced to 1 to3 years in prison (People v Freeman,67 AD3d 1202 [2009]). In anticipation of his release, the Board of Examiners of SexOffenders prepared a risk assessment instrument that presumptively classified defendant as a risklevel two sex offender. At the hearing that followed, County Court modified the points assessedfor two of the enumerated risk factors, resulting in a presumptive risk level one classification.The court thereafter determined that an upward departure was warranted and classified defendantas a risk level two sex offender, prompting this appeal by defendant.
Defendant does not contest the individual scoring adjustments made to the risk assessmentinstrument. He contends only that County Court's decision to depart from the presumptive risklevel classification is not supported by clear and convincing evidence. We disagree.[*2]
"To justify an upward departure from a presumptive riskclassification, an aggravating factor must exist which was not otherwise adequately taken intoconsideration by the risk assessment guidelines, and the court's finding of such a factor must besupported by clear and convincing evidence" (People v Brown, 45 AD3d 1123, 1124 [2007], lv denied 10NY3d 703 [2008] [citations omitted]; see People v Stewart, 77 AD3d 1029, 1030 [2010]; People v Beames, 71 AD3d 1300,1300 [2010]). In ascribing points in the risk assessment instrument, County Court reduced thepoints under Part two Criminal History, risk factor 9 for "Number and nature of prior crimes,"from 30 points recommended by the Board to five. The court correctly reasoned that defendant'sprior 2005 conviction, upon his plea, to attempted endangering the welfare of a child wasneither a felony nor a "sex offense" (Correction Law § 168-a [2]) nor a conviction ofactually endangering the welfare of a child (compare People v Arroyo, 54 AD3d 1141, 1141 [2008], lvdenied 11 NY3d 711 [2008] [30 points allowed under risk factor 9 for endangering thewelfare of a child]). Thus, only five points could be assigned under risk factor 9 for "Priorhistory/no sex crimes or felonies," resulting in a total score of less than 70 points, a presumptiverisk level one.
However, in concluding that an upward departure to risk level two was warranted, CountyCourt properly considered the aggravating facts underlying the attempted endangeringconviction, as reflected in the case summary and presentence investigation report, whichstemmed from defendant showing pornographic videos to more than one minor (see People v Balic, 52 AD3d 201,202 [2008], affd 12 NY3d 563, 569-570, 576-577 [2009] [court properly based upwarddeparture on the defendant's prior misdemeanor assault which, while only allowing five pointsunder risk factor 9 because it was not a sex crime or felony, was of a sexual nature]; People v Joslyn, 27 AD3d 1033,1034 [2006]). Thus, while not a sex offense, defendant's prior conviction "ha[d] a sexualcomponent" (People v Brown, 45AD3d 1123, 1124 [2007], lv denied 10 NY3d 703 [2008]; see People v Twyman, 59 AD3d415, 416 [2009]). As such, County Court's conclusion that defendant's "prior inappropriatesexualized [criminal] conduct" was not adequately taken into consideration by the riskassessment guidelines or risk factor 9 of the risk assessment instrument is supported by clear andconvincing evidence (see Correction Law § 168-n [3]).
Peters, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.