| People v Wyant |
| 2011 NY Slip Op 05919 [86 AD3d 754] |
| July 14, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Shawn M.Wyant, Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Kevin A. Jones of counsel), forrespondent.
Malone Jr., J. Appeal from an order of the County Court of Cortland County (Ames, J.),entered June 11, 2010, which classified defendant as a risk level three sex offender pursuant tothe Sex Offender Registration Act.
In March 2006, defendant pleaded guilty to attempted rape in the first degree (seePenal Law §§ 110.00, 130.35 [1]) in satisfaction of a charge of rape in the firstdegree stemming from defendant's forcible rape of his 26-year-old girlfriend at the time.Defendant also had a prior youthful offender adjudication following his conviction of attemptedsexual abuse in the first degree (see Penal Law §§ 110.00, 130.65 [3]) basedupon his sexual abuse of his six- and nine-year-old nephews. For his present offense, he wassentenced to a prison term of five years followed by five years of postrelease supervision and, inanticipation of his release from prison, the Board of Examiners of Sex Offenders prepared a riskassessment instrument (hereinafter RAI) in accordance with the Sex Offender Registration Act(see Correction Law art 6-C). Defendant was presumptively classified as a risk level twosex offender, but an upward departure was recommended. Following a hearing, County Courtfound that defendant's presumptive risk level was properly scored at risk level two (90 points),but granted the requested upward departure and classified defendant as a risk level three sexoffender. Defendant now appeals.
" 'To justify an upward departure from a presumptive risk classification, an aggravating [*2]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 Wasley, 73 AD3d 1400, 1400 [2010], quoting People v Brown, 45 AD3d 1123,1124 [2007], lv denied 10 NY3d 703 [2008]). Additionally, a prior youthful offenderadjudication is properly considered when scoring defendant's criminal history in part II of theRAI (see People v Stacconi, 81AD3d 1046, 1046 [2011]; People vDort, 18 AD3d 23, 26 [2005], lv denied 4 NY3d 885 [2005]; Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 6 n 6 [2006]). Finally, wenote that the RAI "will result in the proper classification in most cases so that departures will bethe exception—not the rule" (Sex Offender Registration Act: Risk Assessment Guidelinesand Commentary, at 4; see People vCohen, 73 AD3d 1003, 1004 [2010]; People v Lyons, 72 AD3d 776, 777 [2010]).
Here the basis advanced by the People and adopted by County Court regarding whydefendant's two sex offenses, which were both properly scored in the RAI, should be grounds foran upward departure from the presumptive risk level was "[t]he fact that this defendant hasperpetrated against two distinctly different categories of victim [sic], increases (probablydoubles) the potential victims who are at risk in the community." When granting a departure, thecircumstances relied on by the court must be "probative on the issue of . . .defendant's 'risk of reoffense' " (People v Cohen, 73 AD3d at 1004, quoting Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 5; see People vLyons, 72 AD3d at 777) and, in our view, the basis relied on by County Court fails toadequately support a conclusion that defendant's two sex offenses are probative of defendant'srisk of reoffense in a way that is not otherwise adequately taken into account by the RAI.However, our review of the record reveals that an upward departure was recommended by theBoard based upon aggravating factors that may not have been sufficiently accounted for in theRAI, including the circumstances underlying his youthful offender adjudication and theescalation of his offending conduct from nonviolent to violent, and that the evidence in therecord may support the Board's recommendation. Inasmuch as the court was required to review"the recommendation and any materials submitted by the [B]oard" in making its determination(Correction Law § 168-n [3]), and it appears from its order that it did not sufficiently doso, we will remit the matter to County Court for further proceedings (see People v Beames, 71 AD3d1300, 1301 [2010]; People vJohnson, 67 AD3d 1206, 1207 [2009]).
Rose, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is reversed, onthe law, without costs, and matter remitted to the County Court of Cortland County for furtherproceedings not inconsistent with this Court's decision.