| People v Jamison |
| 2012 NY Slip Op 05035 [96 AD3d 1237] |
| June 21, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph L.Jamison, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Peters, P.J. Appeal from an order of the County Court of Warren County (Hall Jr., J.),entered January 29, 2010, which classified defendant as a risk level three sex offender pursuantto the Sex Offender Registration Act.
Following his conviction of the crime of sexual misconduct for having sexual intercoursewith a 16-year-old girl, defendant was sentenced to six years of probation and presumptivelyclassified under the Sex Offender Registration Act (see Correction Law art 6-C) as a risklevel two sex offender (105 points). After a hearing, County Court reduced defendant's total riskfactor score to 85 points, still within the risk level two classification, but concluded that anupward modification was warranted and classified defendant as a risk level three sex offender.Defendant appeals.
We reverse. Initially, we note that defendant's risk factor score of 85 is well below thethreshold for a level three classification, and the Board of Examiners of Sex Offenders did notrecommend an upward departure from the presumptive level two classification (see People v Aguilar, 92 AD3d401 [2012]). Moreover, we find that the purported aggravating factors relied upon by CountyCourt do not warrant an upward departure.
"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 Brown, 45 AD3d 1123, 1124 [2007], lv denied 10NY3d 703 [2008] [citations omitted]; see People v Beames, 71 AD3d 1300, 1300 [2010]). Here, indeparting from the presumptive risk classification, County Court relied on the presentenceinvestigation, as well as the assessment of clinical psychologist Richard Hamill, both of whichindicated that defendant appears to present a high/moderate risk for sexual reoffense.Specifically, the court concluded that Hamill's assessment proves that "defendant has apsychological condition that increases the likelihood of recidivism and decreases his ability tocontrol sexual impulses." However, a review of Hamill's clinical assessment reveals that hisconclusion was based primarily upon defendant's scores on certain standard tests. In that regard,we find it significant that Hamill noted that defendant did not complete "any testing which wouldprovide information about his sexual interests." Furthermore, although Hamill noted thatdefendant's marihuana use "increases his risk for impulsive behavior," he did not connectdefendant's marihuana use—which was fully accounted for on the risk assessmentinstrument—to his risk for sexual reoffense (see People v Perkins, 35 AD3d 1167, 1168 [2006]).
County Court also relied on Hamill's finding that "defendant was classified as [havingattention deficit hyperactivity disorder] and emotionally disturbed in school and was described asa 'menace' who . . . repeatedly acted violently in school requiring policeinvolvement and numerous suspensions and expulsion." Significantly, however, there is noindication that this high school misconduct had any sexual component. Indeed, notably absentfrom defendant's history are any reported prior incidents of inappropriate sexual conduct orconvictions for sexual offenses. Nor do the circumstances surrounding the apparently-consensualsexual contact between defendant and the 16-year-old victim present any unaccounted-foraggravating factors (see People vWyatt, 89 AD3d 112, 120 [2011], lv denied 18 NY3d 803 [2012]). Under thesecircumstances, we find that the aggravating factors relied upon by County Court were eithertaken into consideration on the risk assessment instrument or not supported by the requisite clearand convincing evidence.
Finally, our review of the record reveals no mitigating circumstances that would supportdefendant's claim that a downward departure from the presumptive risk classification iswarranted (see id. at 128-130; People v Beames, 71 AD3d at 1301).
Lahtinen, Malone Jr., Stein and Garry, JJ., concur. Ordered that the order is reversed, on thelaw, without costs, and defendant is classified as a risk level two sex offender under the SexOffender Registration Act.