PEOPLE v. LOGSDON (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law and in the exercise of discretion by determining that defendant is a level one risk pursuant to the Sex Offender Registration Act and as modified the order is affirmed without costs.

Memorandum:  Defendant appeals from an order classifying him as a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.).  Although the risk assessment instrument prepared by the Board of Examiners of Sex Offenders classified defendant as a presumptive level one risk, County Court sua sponte ordered an upward departure to a level two risk based on defendant's history of posttraumatic stress disorder (PTSD) and purported traumatic brain injury (TBI), and on defendant's removal of the victim from New York State for the purpose of continuing a sexual relationship.

Initially, we conclude that the court erred insofar as it based its determination on defendant's history of PTSD and purported TBI. Although defendant was diagnosed with PTSD and may have sustained a TBI, the record is devoid of evidence that any such mental impairment “is causally related to a[ ] risk of reoffense” (People v. Diaz, 100 A.D.3d 1491, 1491, 954 N.Y.S.2d 338 [4th Dept. 2012], lv denied 20 N.Y.3d 858, 2013 WL 452200 [2013] [internal quotation marks omitted];  see People v. Burgos, 39 A.D.3d 520, 520–521, 834 N.Y.S.2d 224 [2d Dept. 2007];  People v. Zehner, 24 A.D.3d 826, 827, 804 N.Y.S.2d 852 [3d Dept. 2005];  cf. People v. Collins, 104 A.D.3d 1220, 1221, 960 N.Y.S.2d 579 [4th Dept. 2013], lv denied 21 N.Y.3d 855, 2013 WL 1876251 [2013];  People v. Andrychuk, 38 A.D.3d 1242, 1243–1244, 831 N.Y.S.2d 795 [4th Dept. 2007], lv denied 8 N.Y.3d 816, 839 N.Y.S.2d 455, 870 N.E.2d 696 [2007] ).  Moreover, the evidence at the SORA hearing included a letter from defendant's psychotherapist, which indicates that defendant is cooperative, willing to engage in treatment, and remorseful, and an assessment prepared by defendant's counselor for sex offender treatment, which indicates that he has a low risk of recidivism.

Nor is the continuing nature of the crime sufficient to support the upward departure because, even if additional points were assessed for risk factor 4, i.e., continuing course of sexual misconduct, defendant's total risk factor score would not result in defendant's classification as a presumptive level two risk (see generally People v. Barody, 54 A.D.3d 1109, 1110, 864 N.Y.S.2d 202 [3d Dept. 2008] ).  Further, there is no basis for an upward departure where, as here, the alleged aggravating factor is adequately taken into account by the risk assessment guidelines (see generally People v. Shackelton, 117 A.D.3d 1283, 1284, 985 N.Y.S.2d 765 [3d Dept. 2014];  People v. Grady, 81 A.D.3d 1464, 1464, 917 N.Y.S.2d 798 [4th Dept. 2011] ).  Finally, although we conclude that defendant's actions in taking the victim across state lines constitute an aggravating factor that is, “as a matter of law, of a kind or to a degree not adequately taken into account by the [risk assessment] guidelines” (People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ), we further conclude that the court improvidently exercised its discretion in granting an upward departure based on that factor under the circumstances of this case.  We therefore substitute our own discretion (see generally People v. George, 141 A.D.3d 1177, 1178, 35 N.Y.S.3d 625 [4th Dept. 2016];  People v. Goossens, 75 A.D.3d 1171, 1171, 904 N.Y.S.2d 858 [4th Dept. 2010] ), and we modify the order by determining that defendant is a level one risk.