PEOPLE v. MILLER (2008)

Appeal from an order of the County Court of Schoharie County (Bartlett, III, J.), entered August 10, 2007, which classified defendant a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty in 1997 to rape in the first degree in satisfaction of an indictment which also charged a second count of rape in the first degree and endangering the welfare of a child.   He was sentenced to 5 to 10 years in prison.   Prior to his scheduled release in August 2007, the Board of Examiners of Sex Offenders evaluated defendant and classified him a presumptive risk level III sex offender pursuant to the Sex Offender Registration Act (see Correction Law art. 6-C).   A hearing was conducted before County Court, at the conclusion of which the court adopted the Board's recommendation and classified defendant a risk level III sex offender.   Contending that County Court abused its discretion in not modifying his risk level III classification downward, defendant now appeals.

 A departure from a presumptive risk level is warranted where “there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 4 [2006];  see People v. Roe, 47 A.D.3d 1156, 1156, 850 N.Y.S.2d 691 [2008], lv. denied 10 N.Y.3d 707, 858 N.Y.S.2d 655, 888 N.E.2d 397;  People v. Kaminski, 38 A.D.3d 1127, 1128, 833 N.Y.S.2d 266 [2007], lv. denied 9 N.Y.3d 803, 840 N.Y.S.2d 763, 872 N.E.2d 876 [2007];  People v. Mothersell, 26 A.D.3d 620, 621, 808 N.Y.S.2d 510 [2006] ).   The question of whether a departure is warranted is committed to the sound discretion of the classifying court (see People v. Roe, 47 A.D.3d at 1156, 850 N.Y.S.2d 691;  People v. Warren, 42 A.D.3d 593, 595, 840 N.Y.S.2d 176 [2007], lv. denied 9 N.Y.3d 810, 844 N.Y.S.2d 786, 876 N.E.2d 515 [2007];  People v. Kaminski, 38 A.D.3d at 1128, 833 N.Y.S.2d 266;  People v. Mothersell, 26 A.D.3d at 621, 808 N.Y.S.2d 510).   Defendant does not directly contest the points assigned for refusing treatment and for unsatisfactory conduct while confined, but argues that County Court should have downwardly modified his risk level III classification due to the underlying circumstances.   However, the record demonstrates-and defendant concedes-that, while he did complete a single, limited sex offender treatment program, he was removed from a second program for poor performance and thereafter refused to participate in additional recommended programs.   Furthermore, he was indisputably found guilty of a tier III disciplinary violation just months prior to his scheduled release although the disposition was in some respects favorable to defendant. It is clear from the record that County Court considered the circumstances of defendant's refusal of treatment and tier III disciplinary violation and we cannot conclude that it abused its discretion by not downwardly departing from defendant's presumptive risk level (see People v. Roe, 47 A.D.3d at 1156, 850 N.Y.S.2d 691;  People v. Kaminski, 38 A.D.3d at 1128, 833 N.Y.S.2d 266;  People v. Mothersell, 26 A.D.3d at 621, 808 N.Y.S.2d 510).

ORDERED that the order is affirmed, without costs.

CARDONA, P.J., PETERS, CARPINELLO and STEIN, JJ., concur.

KANE, J.