| People v Briggs |
| 2011 NY Slip Op 06071 [86 AD3d 903] |
| July 28, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Darren Briggs,Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine Henley of counsel), forrespondent.
Peters, J.P. Appeal from an order of the County Court of Washington County (McKeighan,J.), entered December 16, 2010, which classified defendant as a risk level three sex offenderpursuant to the Sex Offender Registration Act.
In 2009, defendant, a minister, pleaded nolo contendere in Michigan to criminal sexualconduct in the fourth degree and was sentenced to 180 days in jail as the result of hisinappropriate sexual contact with an 11-year-old boy. Based upon his relocation to New York,the Board of Examiners of Sex Offenders prepared a risk assessment instrument thatpresumptively classified defendant as a risk level two sex offender (90 points) in accordance withthe Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), butrecommended an upward departure to risk level three status. Following a risk assessmenthearing, County Court agreed and designated defendant a risk level three sex offender. Defendantappeals, arguing that he was improperly assessed points in three categories on the risk assessmentinstrument and that a downward departure was warranted.
Risk factor 7 provides, in pertinent part, that 20 points shall be assigned if the misconduct"arose in the context of a professional or avocational relationship between the offender and thevictim and was an abuse of such relationship" (Sex Offender Registration Act: [*2]Risk Assessment Guidelines and Commentary, at 12 [2006]).Although the risk assessment guidelines do not define a "professional or avocationalrelationship," they provide that this risk factor reaches those "who exploit a professionalrelationship in order to victimize those who repose trust in them" (Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary, at 12 [2006]) and that "[t]he need forcommunity notification . . . is generally greater when the offender strikes at persons. . . who have sought out his [or her] professional care" (Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary, at 12 n 8 [2006]). Furthermore, Black's LawDictionary defines "professional relationship" as "[a]n association that involves one person'sreliance on the other person's specialized training" (Black's Law Dictionary 1402 [9th ed 2009]).
Defendant served in a nondenominational Christian ministry since 1998. As part of hisministerial duties, defendant was placed by the ministry in the homes of parishioners who reliedupon him to provide spiritual services. At the time of the instant incident, defendant had beenwelcomed into the victim's home in Michigan to provide spiritual guidance to the family, and itwas through this relationship that defendant was able to secure the trust that enabled him to gainaccess to the victim behind closed doors. Under these circumstances, we find the relationshipbetween defendant and the victim to be a professional one within the meaning of SORA, thusjustifying the assessment of 20 points with respect to that risk factor (see People v Carlton, 78 AD3d1654, 1655 [2010], lv denied 16 NY3d 782 [2011]; People v Cuesta, 65 AD3d 1113,1114 [2009]; see also People vFarrell, 78 AD3d 1454, 1455 [2010]).
We similarly reject defendant's claim that he was improperly assessed 10 points under riskfactor 12 for failing to accept responsibility for his actions. Defendant never admitted his guiltduring his nolo contendere plea allocution (cf. People v Matthie, 34 AD3d 987, 990 [2006], lvs denied8 NY3d 805, 847 [2007]) and, at the SORA hearing, denied that his contact with the victim wasfor the purpose of sexual gratification (see People v Lerch, 66 AD3d 1088, 1088-1089 [2009], lvdenied 13 NY3d 715 [2010]; Peoplev Legall, 63 AD3d 1305, 1306 [2009], lv denied 13 NY3d 706 [2009]).Furthermore, as defendant was released without any form of parole, probation or supervision, wefind no error in the assessment of 15 points under risk factor 14 concerning release environment(see People v Ramirez, 53 AD3d990, 991 [2008], lv denied 11 NY3d 710 [2008]; People v Hyson, 27 AD3d 919, 920 [2006]).
Nor are we persuaded that County Court abused its discretion in increasing defendant'sclassification from the risk level two recommended by the Board to risk level three. "[A]nupward departure from the presumptive risk classification is justified when clear and convincingevidence establishes the existence of an aggravating factor that is not adequately taken intoaccount by the risk assessment guidelines" (People v Farrell, 78 AD3d at 1455; see People v Hammer, 82 AD3d1456, 1457 [2011]). Initially, we agree with defendant that, given the absence of any proofsubstantiating the statement in the Michigan State Police original incident report that "there areadditional victims," and in light of defendant's denial of having victimized anyone else during histravels with the ministry, that hearsay statement does not rise to the level of clear and convincingevidence necessary to support County Court's upward departure (see People v Warrior, 57 AD3d1471, 1472 [2008]; see also Peoplev Stewart, 61 AD3d 1059, 1060 [2009]). However, the evidence of his propensity tomove and transient lifestyle is not adequately taken into consideration by the risk assessmentguidelines and was properly relied upon by the court as justification for an upward departure (see People v Wasley, 73 AD3d1400, 1401 [2010]; People vRoberts, 54 AD3d 1106, 1107 [2008], lv denied 11 NY3d 713 [2008]; People v Hill, 50 AD3d 990, 991[2008], lv denied 11 NY3d 701 [2008]). In our view, this [*3]ground alone was a sufficient basis for the court's upward departure.Accordingly, we find no basis upon which to disturb the court's classification of defendant as arisk level three sex offender.
Finally, defendant failed to preserve for our review his contention that he was entitled to adownward departure from his presumptive risk level, as he did not request such relief beforeCounty Court (see People vJohnson, 11 NY3d 416, 421-422 [2008]; People v Parker, 81 AD3d 1304, 1304 [2011], lv denied 16NY3d 713 [2011]; People v Rivera,51 AD3d 646, 647 [2008], lv denied 11 NY3d 704 [2008]). In any event, defendantfailed to demonstrate by clear and convincing evidence the existence of any mitigating factorsnot taken into account by the guidelines that warranted a downward departure from hispresumptive risk level (see People vBarnett, 71 AD3d 1296, 1297 [2010]; People v Roe, 47 AD3d 1156 [2008], lv denied 10 NY3d707 [2008]).
Spain, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.