| People v October |
| 2012 NY Slip Op 08709 [101 AD3d 975] |
| December 19, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael October, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen ofcounsel; Deborah Wei on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (DiMango, J.),dated September 26, 2011, which, after a hearing, designated him a level three sexually violentoffender pursuant to Correction Law article 6-C.
Ordered that the order is reversed, on the law and in the exercise of discretion, without costsor disbursements, and the defendant is designated a level two sexually violent offender.
A court has the discretion to depart from the presumptive risk level based upon the facts inthe record, but a departure from the presumptive risk level is warranted only where there existsan aggravating factor or mitigating factor of a kind, or to a degree, that is otherwise notadequately taken into account by the Sex Offender Registration Act guidelines (see People v Henry, 91 AD3d 927,927 [2012]; see also Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 4 [2006] [hereinafter the Guidelines]). There must be clear and convincingevidence of a special circumstance to warrant an upward departure from the presumptive risklevel (see People v Henry, 91 AD3d at 927; People v Wyatt, 89 AD3d 112, 120 [2011]). A defendant seeking adownward departure has the initial burden of "establishing the facts in support of its existence bya preponderance of the evidence" (People v Wyatt, 89 AD3d at 128; see People v Watson, 95 AD3d978, 979 [2012]).
Where an aggravating or mitigating factor is shown to exist, the Board or a court "may"choose to depart if the factor indicates that the point score on the risk assessment instrument hasresulted in an overassessment or underassessment of the offender's actual risk to public safety(Guidelines at 7, 9, 14; see People v Wyatt, 89 AD3d at 121). "Accordingly, a sufficientevidentiary showing of facts establishing the existence of an appropriate aggravating ormitigating factor is the threshold condition triggering the court's discretionary authority to departfrom the presumptive risk level" (People v Wyatt, 89 AD3d at 121). Where the legalthreshold condition has been met, reversal is warranted where the determination as to whether todepart constituted an improvident exercise of discretion given the circumstances of the case.
Here, the defendant was assessed a total risk factor score of 75 points, making him apresumptive level two sexually violent offender. Although we conclude that the Supreme Court[*2]providently exercised its discretion in declining todownwardly depart from presumptive risk level two to risk level one, we nevertheless concludethat, under the circumstances of this case, the Supreme Court should not have upwardly departedfrom presumptive risk level two to risk level three. We note that the People never requested anupward departure from the presumptive risk level and that the court did so on its own initiativedespite the fact that the defendant's total risk factor score placed him at the extreme low end ofthe range of scores encompassing level two sex offenders. Furthermore, some of the factors citedby the Supreme Court in support of its upward departure from the defendant's presumptive risklevel two designation, including the defendant's lack of remorse for the victim, were adequatelytaken into account by the Guidelines (see People v Campbell, 98 AD3d 5, 14 [2012]; People v Cohen, 73 AD3d 1003,1004 [2010]; see also Guidelines at 15-16; cf. People v Fuller, 83 AD3d 1025, 1026 [2011]; People v Vega, 79 AD3d 718, 719[2010]; People v Smith, 78 AD3d917, 918-919 [2010]; People vPeana, 68 AD3d 737, 737 [2009]). The remaining circumstances not taken into accountby the Guidelines do not, under the circumstances, warrant an upward departure, and theSupreme Court improvidently exercised its discretion to the extent it based its determinationupon them (cf. People v Stevens, 55AD3d 892, 894 [2008]; People vAbdullah, 31 AD3d 515, 516 [2006]). Accordingly, the defendant should have beendesignated a level two sexually violent offender. Skelos, J.P., Balkin, Chambers and Miller, JJ.,concur.