| People v Moss |
| 2013 NY Slip Op 02297 [105 AD3d 1099] |
| April 4, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Paul A. Moss, Also Known as Paul Algieri, Also Known as PaulAlegeri, Also Known as Paul Algeri, Also Known as Paul Algier,Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler ofcounsel), for respondent.
Rose, J.P. Appeal from an order of the County Court of Saratoga County (Scarano,J.), entered September 20, 2011, which classified defendant as a risk level III sexoffender pursuant to the Sex Offender Registration Act.
Defendant, who was 41 years old at the time, met a 15-year-old girl in a Chuck E.Cheese restaurant and induced her to accompany him to his apartment where the twoengaged in unprotected oral, anal and vaginal sex. Defendant was arrested, he eventuallypleaded guilty to rape in the third degree and he was sentenced to two years in prisonfollowed by five years of postrelease supervision. In anticipation of defendant's releasefrom prison, the Board of Examiners of Sex Offenders prepared a risk assessmentinstrument that presumptively classified him as a risk level III sex offender under the SexOffender Registration Act (see Correction Law art 6-C). At the ensuing hearing,defendant did not contest the assessment of points, but he sought a downward departurefrom the presumptive risk level. County Court denied defendant's request and classifiedhim as a risk level III sex offender. He now appeals, and we affirm.[*2]
The question of whether to grant a downwardmodification from the presumptive risk level rests within the sound discretion of the trialcourt and is warranted "only where 'there exists [a] . . . mitigating factor ofa kind, or to a degree, that is otherwise not adequately taken into account by theguidelines' " (People vBarnett, 71 AD3d 1296, 1297 [2010], quoting Sex Offender Registration Act:Risk Assessment Guidelines and Commentary at 4 [2006]; see People v Nichols, 80AD3d 1013, 1014 [2011]). The burden is on the sex offender to establish by clearand convincing evidence that the requested modification is warranted (seeCorrection Law § 168-o [2]).
Defendant's claim that his criminal history compels a downward departure isunpersuasive. His presentence investigation report discloses a criminal record involvingeight prior convictions stretching back to 1988. Although he asserts that a 1993 crime forwhich he was convicted of attempted robbery in the second degree was not "violent," hebases his contention on nothing more than the fact that the sentence included a relativelybrief period of incarceration. We take note, however, that attempted robbery in thesecond degree is classified as a violent felony (see Penal Law §§70.02 [1] [b], [c]; 160.10). To the extent that defendant also claims that his record isdevoid of sexually related offenses, our review of his criminal history reveals that he wascharged in 2006 with endangering the welfare of a child (see Penal Law §260.10). Although he eventually pleaded guilty to menacing in the second degree insatisfaction of that charge, the presentence investigation report relates his description ofthe original charge as "a sex offense."
Defendant also argues that a downward departure is warranted based on the victim'salleged consent, but this argument is rejected inasmuch as his victim was legallyincapable of giving her consent by reason of her age (see Penal Law §130.25 [2]). Thus, County Court acted well within its discretion in denying defendant'srequest for a downward modification of his risk level status (see People v Briggs, 86 AD3d903, 905 [2011]; People vWright, 78 AD3d 1437, 1438 [2010]).
Stein, Spain and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.