| People v Birch |
| 2014 NY Slip Op 01366 [114 AD3d 1117] |
| February 27, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJonathan Birch, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Vincent Stark of counsel) forrespondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Breslin, J.), entered January23, 2012 in Albany County, which classified defendant as a risk level II sex offenderpursuant to the Sex Offender Registration Act.
In 2011, defendant waived indictment and pleaded guilty to a superior courtinformation charging him with one count of rape in the third degree (see PenalLaw § 130.25 [2]) and was sentenced to six months in jail and placed on probationfor a period of 10 years. In anticipation of his release, the Board of Examiners of SexOffenders prepared a risk assessment instrument in accordance with the Sex OffenderRegistration Act (see Correction Law art 6-C) that presumptively classifieddefendant as a risk level I sex offender. Included in the 70 points comprising defendant'soverall score were 20 points assigned under risk factor 7 (relationship with the victim),which defendant contested. Following a hearing, Supreme Court upheld the pointsassigned under risk factor 7 and assigned defendant an additional 10 points under riskfactor 12 (acceptance of responsibility). This raised defendant's overall score to 80,which placed him in the risk level II category, and Supreme Court found this to be anappropriate risk level classification. Supreme Court alternatively concluded that anupward departure was warranted and, for all of these reasons, classified defendant as arisk level II sex offender. This appeal by defendant ensued.
Although Supreme Court did not issue the required written order setting forth its[*2]findings of fact and conclusions of law (seeCorrection Law § 168-n [3]), remittal is not required as the record is sufficientlydeveloped to permit this Court to make the necessary findings (see People v Hemmes, 110AD3d 1387, 1388 [2013]; People v Rodriguez, 78 AD3d 1140, 1141 [2010], lvdenied 16 NY3d 707 [2011]). The crux of defendant's argument on appeal is that therecord does not contain clear and convincing evidence (see e.g. People v Belile, 108AD3d 890, 890 [2013], lv denied 22 NY3d 853 [2013]; People v McFall, 93 AD3d962, 963 [2012]) to support Supreme Court's decision to classify him as a risk levelII sex offender. We agree.
Insofar as is relevant here, the imposition of points under risk factor 7 required thatdefendant's crime be "directed at a stranger or a person with whom a relationship [was]established or promoted for the primary purpose of victimization" (Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary at 12 [2006]).Defendant, then 35 years old, met the 16-year-old victim while waiting tables at a localrestaurant in November 2010; the two exchanged phone numbers and, betweenNovember 2010 and March 2011, communicated primarily via text messages onnumerous occasions—often on a daily basis. Given this level of contact, it cannotbe said that defendant was a "stranger" to the victim at the time of the underlying crimein March 2011 (see People vPelaez, 112 AD3d 684, 685 [2013]; People v Helmer, 65 AD3d 68, 69-70 [2009]; seealso Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at12 [2006]; compare People vTejada, 51 AD3d 472, 472 [2008]; People v Lewis, 45 AD3d 1381, 1381 [2007], lvdenied 10 NY3d 703 [2008]). Additionally, under the particular facts of this case, wecannot say that the record establishes—by clear and convincingevidence—that defendant formed the underlying relationship for the primarypurpose of victimization (seePeople v Johnson, 104 AD3d 1321, 1321-1322 [2013]; People v Stein, 63 AD3d99, 101-102 [2009]; compare People v DeDona, 102 AD3d 58, 67 [2012]; People v Washington, 91AD3d 1277, 1277 [2012], lv denied 19 NY3d 801 [2012]; People v Duart, 84 AD3d908, 909 [2011], lv dismissed 17 NY3d 916 [2011]; People v Romana, 35 AD3d1241, 1242 [2006], lv denied 8 NY3d 810 [2007]). Accordingly, defendantwas improperly assessed 20 points under risk factor 7; deducting these points from the 70points initially assigned on the risk assessment instrument reduces defendant's overallscore to 50 points, which presumptively classifies defendant as a risk level I sex offender.Even assuming that Supreme Court properly assessed defendant an additional 10 pointsunder risk factor 12 (acceptance of responsibility), the resulting score (60 points) stillwould place defendant in the risk level I category. As a result, we are left to considerwhether, as Supreme Court found, the facts of this case warrant a departure from thepresumptive risk level classification.
In this regard, the case law makes clear that "[a] departure from the presumptive risklevel classification is warranted only where there exists an aggravating or mitigatingfactor of a kind, or to a degree, that is otherwise not adequately taken into account by theguidelines" (People vKotzen, 100 AD3d 1162, 1162-1163 [2012], lv denied 20 NY3d 860[2013] [internal quotation marks and citations omitted]; see People v Wells, 101 AD3d1407, 1408 [2012]). Here, even assuming that the aggravating factor identified bySupreme Court—the age difference existing between defendant and thevictim—was not adequately encompassed by the risk assessment instrument, wenonetheless determine that, under the facts of this case, an upward departure was notwarranted, particularly given that the People did not seek an upward departure fromdefendant's presumptive classification as a risk level I sex offender and, moreimportantly, the absence of record evidence to support defendant's classification as a risklevel II sex offender (cf. People v Wells, 101 AD3d at 1408-1409).
Lahtinen, J.P., Stein and McCarthy, JJ., concur. Ordered that the order is reversed, onthe law, without costs, and defendant is classified as a risk level I sex offender under theSex Offender Registration Act.