PEOPLE v. NEWKIRK (2025)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Albany County (Andra Ackerman, J.), entered July 25, 2023, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

In 2005, defendant was indicted and charged with three counts each of rape in the first degree and sexual abuse in the first degree.  Defendant ultimately was convicted of three counts each of attempted rape in the first degree and sexual abuse in the first degree and was sentenced to a lengthy term of imprisonment (75 A.D.3d 853, 854, 906 N.Y.S.2d 133 [3d Dept. 2010], lv denied 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011]).  In anticipation of defendant's release from prison in 2023, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI) that presumptively classified defendant as a risk level one sex offender (35 points) pursuant to the Sex Offender Registration Act (see Correction Law art 6–C).  The People then prepared their own RAI, which assessed 20 additional points under risk factors 12 (acceptance of responsibility) and 13 (conduct while confined) and sought an upward departure to a risk level two classification.  As relevant here, defendant contested the additional points imposed under risk factors 12 and 13 and opposed the People's request for an upward departure.  County Court accepted the People's points assessment, granted their request for an upward departure, denied defendant's corresponding request for a downward departure and classified defendant as a risk level two sex offender with a sexually violent offender designation.  This appeal by defendant ensued.

Defendant, as so limited by his brief, contends that County Court erred in imposing 10 points under risk factor 12 and, further, in granting the People's request for an upward departure.  The People bear the burden of establishing a defendant's risk level classification by clear and convincing evidence (see People v. Kraft, 229 A.D.3d 1016, 1017, 215 N.Y.S.3d 606 [3d Dept. 2024];  People v. Stammel, 227 A.D.3d 1322, 1323, 212 N.Y.S.3d 245 [3d Dept. 2024]) and, to that end, may utilize reliable hearsay, including the RAI, case summary and presentence report (see People v. Thomas, 226 A.D.3d 1292, 1293, 210 N.Y.S.3d 348 [3d Dept. 2024], lv denied 42 N.Y.3d 905, 2024 WL 4229152 [2024];  People v. Huether, 205 A.D.3d 1233, 1234, 167 N.Y.S.3d 650 [3d Dept. 2022], lv denied 39 N.Y.3d 901, 2022 WL 11444002 [2022]).  With respect to the points assessed under risk factor 12, the record reflects that although defendant made a generalized statement of remorse shortly before the start of his risk level classification hearing, such statement evinces limited insight into his offenses and/or the impact of his conduct upon the victim.  Similarly, although defendant successfully completed a sex offender treatment program while incarcerated, his discharge summary reflects that he received the lowest possible score for acceptance of responsibility – with the numerical ranking corresponding to “the least competency/understanding in this area.”  The record further reflects that defendant historically and consistently denied that the offending conduct occurred, attempted to portray the victim as promiscuous and concocted what County Court aptly described as “an objectively absurd story” regarding one of the subject incidents in which he portrayed the victim as the aggressor (see e.g. People v. Hackel, 185 A.D.3d 1118, 1119, 126 N.Y.S.3d 240 [3d Dept. 2020]).  Under these circumstances, clear and convincing evidence supports the finding that defendant did not genuinely accept responsibility for his actions (see generally People v. Uhle, 221 A.D.3d 1199, 1200–1201, 201 N.Y.S.3d 254 [3d Dept. 2023]) and, therefore, the 10 points assessed under risk factor 12 were entirely proper (see People v. LeBlanc, 207 A.D.3d 966, 967–968, 172 N.Y.S.3d 227 [3d Dept. 2022];  People v. Arroyo, 202 A.D.3d 1212, 1213, 162 N.Y.S.3d 217 [3d Dept. 2022], lv denied 38 N.Y.3d 910, 2022 WL 2165430 [2022]) – resulting in a presumptive risk level one classification.

As for the People's request for an upward departure to a risk level two classification, “[a]n upward departure from a presumptive risk level classification is justified when an aggravating factor exists that is not otherwise adequately taken into account by the risk assessment guidelines and the court finds that such factor is supported by clear and convincing evidence” (People v. Richardson, 209 A.D.3d 1068, 1069, 175 N.Y.S.3d 771 [3d Dept. 2022] [internal quotation marks and citations omitted], lv denied 39 N.Y.3d 908, 2023 WL 1975553 [2023];  accord People v. Norris, 223 A.D.3d 1060, 1061, 204 N.Y.S.3d 269 [3d Dept. 2024];  see People v. Shufelt, 223 A.D.3d 966, 968, 203 N.Y.S.3d 422 [3d Dept. 2024], lv denied 41 N.Y.3d 909, 2024 WL 2333700 [2024]).  “An aggravating factor, in turn, is one which tends to establish a higher likelihood of reoffense or danger to the community than the presumptive risk level calculated on the RAI” (People v. Norris, 223 A.D.3d at 1061, 204 N.Y.S.3d 269 [internal quotation marks, brackets and citations omitted];  accord People v. Maurer, 220 A.D.3d 1061, 1062, 199 N.Y.S.3d 229 [3d Dept. 2023]).

As we previously have held, “the existence of a familial relationship between an offender and his or her victim, standing alone, does not constitute an adequate basis for an upward departure in the offender's risk level classification” (People v. Huether, 205 A.D.3d at 1235, 167 N.Y.S.3d 650 [internal quotation marks and citation omitted];  see People v. Velasquez, 195 A.D.3d 762, 763, 145 N.Y.S.3d 415 [2d Dept. 2021]).  “A similar analysis has been employed relative to an abuse or betrayal of trust in the context of a familial relationship” (People v. Huether, 205 A.D.3d at 1236, 167 N.Y.S.3d 650 [citation omitted];  see People v. Mota, 165 A.D.3d 988, 989, 84 N.Y.S.3d 569 [2d Dept. 2018], lv denied 32 N.Y.3d 917, 2019 WL 757739 [2019]).  However, the case summary, the victim's grand jury and trial testimony and the presentence report collectively “evidence[ ] a level of depravity not otherwise adequately taken into consideration by the risk assessment guidelines,” thereby warranting an upward departure to a risk level two classification (People v. Huether, 205 A.D.3d at 1236, 167 N.Y.S.3d 650).  Specifically, the record reflects that defendant jimmied the lock on the victim's door to gain access to her bedroom, took partially-nude pictures of her, watched adult videos in her bedroom, blamed the victim by portraying her as promiscuous and, following one sexual encounter with the victim, stated, “[t]hat's for sneaking off to [a] boy's house.” ¹  Under these circumstances, County Court's decision to grant the People's request and classify defendant as a risk level two sex offender will not be disturbed.  Defendant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   Defendant does not directly address the denial of his request for a downward departure to a risk level one classification, contending instead that his age, health and alleged physical infirmities militate against an upward departure to a risk level two classification.  The record, however, is devoid of proof that “either defendant's age or his allegedly deteriorating health renders him less likely to commit sex crimes in the future” (People v. Kaminski, 208 A.D.3d 1395, 1397, 173 N.Y.S.3d 683 [3d Dept. 2022] [internal quotation marks and citation omitted], lv denied 39 N.Y.3d 905, 2022 WL 17684525 [2022];  see People v. Lashway, 226 A.D.3d 1270, 1271–1272, 210 N.Y.S.3d 519 [3d Dept. 2024];  People v. Huether, 205 A.D.3d at 1235, 167 N.Y.S.3d 650).

Fisher, J.

Garry, P.J., Aarons, McShan and Mackey, JJ., concur.