| People v Richardson |
| 2012 NY Slip Op 08501 [101 AD3d 837] |
| December 12, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Levogie Richardson, Appellant. |
—[*1]
Appeal by the defendant from an order of the County Court, Dutchess County (Dolan, J.),dated March 30, 2010, which, after a hearing, designated him a level three sex offender pursuantto Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The New York State Board of Examiners of Sex Offenders (hereinafter the Board) prepared aRisk Assessment Instrument (hereinafter the RAI) for the defendant which assessed points forvarious risk factors and rendered a total score which placed the defendant in presumptive risklevel two under the Sex Offender Registration Act (hereinafter SORA) (see generally People v Johnson, 11NY3d 416, 421 [2008]; People vWyatt, 89 AD3d 112, 117-119 [2011]; Correction Law § 168-n [2], [3]). At theSORA risk level determination hearing, the County Court determined that the People establishedby clear and convincing evidence the facts in support of six risk factors for a point total of 100,within presumptive risk level two, and further departed upward to risk level three upon theapplication of the People and the Board's recommendation.
The defendant contends that the County Court erred in assessing points for three of the sixrisk factors under which he was assessed points in the RAI. On an appeal from a risk leveldetermination proceeding, where, as here, a sex offender disputes the points assessed under oneor more risk factors, this Court must determine whether the People met their burden ofestablishing the facts in support of the determination by clear and convincing evidence (seePeople v Wyatt, 89 AD3d at 118).
The People met that burden here with evidence including the plea and sentencing minutes,the presentence report, psychiatric reports, the complainant's medical records, and the Board'scase summary. The evidence established clearly and convincingly that the defendant inflictedphysical injury on the victim, which supported the assessment of 15 points under risk factor 1(see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 8[2006] [hereinafter the Guidelines or Commentary]; Penal Law § 10.00 [9]; People v Chiddick, 8 NY3d 445,447 [2007]; People v Monserrate,90 AD3d 785, 787 [2011]), that the victim was asleep at the beginning of the sexual assaultand, thus, physically helpless, which supported the assessment of 20 points under risk factor 6(see Commentary at 11; Penal Law § 130.00 [7]; People v Duff, 96 AD3d 1031[2012], lv denied 19 NY3d 810 [2012]; People v Howell, 82 AD3d 857 [2011]), and that the defendant hada history of drug abuse, which supported the assessment of 15 points under risk factor 11 (see People v Crandall, 90 AD3d628, 629-630 [2011]).[*2]
The defendant further contends that the County Courterred in granting the People's application, upon the recommendation of the Board, for an upwarddeparture to risk level three. A court may exercise its discretion and depart upward from thepresumptive risk level where "it concludes that there exists an aggravating . . .factor of a kind, or to a degree, that is otherwise not adequately taken into account by theguidelines" (Commentary at 4). The aggravating factor "must tend to establish a higherlikelihood of reoffense or danger to the community and be of a kind, or to a degree, that isotherwise not adequately taken into account by the Guidelines" and "the People must prove thefacts in support of the aggravating factor by clear and convincing evidence" (People vWyatt, 89 AD3d at 123; see Correction Law § 168-n [3]).
Contrary to the defendant's contention, the People demonstrated by clear and convincingevidence the existence of an aggravating factor that was not adequately taken into account by theGuidelines with evidence that the defendant suffered from a serious mental illness oflongstanding and continuing duration which must be controlled by prescribed medication, that hehad committed the instant sexual offense when he had failed to take prescribed medication andhad recently been released from an emergency psychiatric clinic, that he had a history of frequentnoncompliance with taking his medication, that he had difficulty in finding an appropriateresidential setting when not incarcerated, and that his behavior was unpredictable and violentwhen he was not medicated or supervised (see People v Bogert, 91 AD3d 925, 926 [2012]). Upon making thisdetermination, the County Court providently exercised its discretion in adopting the Board'srecommendation and granting the People's application for an upward departure (see People vWyatt, 89 AD3d at 123). Angiolillo, J.P., Sgroi, Cohen and Miller, JJ., concur.