| People v Harris |
| 2012 NY Slip Op 01803 [93 AD3d 704] |
| March 13, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Melvin Harris, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy,and Aaronda Watson of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Guzman, J.),dated October 15, 2010, which, after a hearing, designated him a level two sex offender pursuantto Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Correction Law § 168-n (3) requires a court making a risk level determination pursuantto the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) to "render anorder setting forth its determinations and the findings of fact and conclusions of law on which thedeterminations are based" (Correction Law § 168-n [3]). Here, the Supreme Court failedadequately to set forth its findings of fact and conclusions of law in its order. However, since therecord is sufficient for this Court to make its own findings of fact and conclusions of law,remittal is not required (see People vLashway, 66 AD3d 662, 662 [2009]; People v Guitard, 57 AD3d 751, 751 [2008]).
The People established, by clear and convincing evidence, that, in the commission of theunderlying crimes, the defendant employed forcible compulsion, justifying the assessment of 10points under risk factor 1 of the Risk Assessment Instrument (hereinafter the RAI). Thecomplainant's grand jury testimony established, by clear and convincing evidence, that thedefendant compelled her to comply with his demands by use of both physical force and expressand implied threats, placing her in fear of immediate death or physical injury (see PenalLaw § 130.00 [8]). Additionally, the Supreme Court properly determined that theassessment of 15 points under risk factor 11 of the RAI, based on a history of drug or alcoholabuse, was supported by clear and convincing evidence. The presentence report recited that thedefendant was currently using alcohol and cocaine. It further stated that the defendant admitted toabusing cocaine and alcohol. The case summary prepared by the Board of Examiners of SexOffenders indicated that the defendant had been convicted in 1993 of attempted criminalpossession of a controlled substance in the seventh degree. The case summary also noted that thedefendant had acknowledged that he had abused alcohol and cocaine, and that he participated inan alcohol treatment program in 2005. The case summary further stated that, while incarcerated,the defendant "scored alcoholic on the Michigan Alcoholism Screening Test." As a result, thedefendant was recommended for a substance abuse treatment program, which he entered inFebruary 2010. We conclude that the foregoing established, [*2]by clear and convincing evidence, that the assessment of 15 pointson the RAI for a history of drug or alcohol abuse was appropriate, notwithstanding the fact thatthe defendant has participated in another treatment program while incarcerated. Accordingly,contrary to the defendant's contentions, based on all points assessed on the RAI, the SupremeCourt properly determined that the defendant was a presumptive level two sex offender.
A court has the discretion to depart from the presumptive risk level, as determined by use ofthe RAI, based upon the facts in the record (see People v Bowens, 55 AD3d 809, 810 [2008]; People v Taylor, 47 AD3d 907,907 [2008]; People v Burgos, 39AD3d 520, 520 [2007]; People vHines, 24 AD3d 524, 525 [2005]). However, "utilization of the risk assessmentinstrument will generally 'result in the proper classification in most cases so that departures willbe the exception not the rule' " (People vGuaman, 8 AD3d 545, 545 [2004], quoting Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 4 [Nov. 1997]; see People v Bowens, 55AD3d at 810; People v Taylor, 47 AD3d at 908; People v Burgos, 39 AD3d at520; People v Hines, 24 AD3d at 525).
A departure from the presumptive risk level is warranted where "there exists an aggravatingor mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into accountby the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 4 [2006]; see People v Bowens, 55 AD3d at 810; People vTaylor, 47 AD3d at 908; People v Burgos, 39 AD3d at 520; People v Hines,24 AD3d at 525). A defendant seeking a downward departure need only establish the existence ofan appropriate mitigating factor by a preponderance of the evidence (see People v Wyatt, 89 AD3d 112,127-128 [2011], lv denied 18 NY3d 803 [2012]). "A sex offender's successful showingby a preponderance of the evidence of facts in support of an appropriate mitigating factor doesnot automatically result in the relief requested, but merely opens the door to the SORA court'sexercise of its sound discretion upon further examination of all relevant circumstances" (id.at 127).
The Supreme Court providently exercised its discretion in denying the defendant's request fora downward departure from his presumptive designation as a risk level two sex offender, as therecord does not reflect the existence of special circumstances warranting a downward departure.Under the circumstances of this case, neither the fact that the defendant is over 50 years of age,nor the fact that his convictions of the underlying sex offenses were his first sex offenseconvictions, warranted a downward departure from the defendant's presumptive risk level.Skelos, J.P., Dickerson, Belen and Miller, JJ., concur.