PEOPLE v. REMONDA (2018)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Fulton County (Hoye, J.), entered April 2, 2015, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

In 2012, defendant pleaded guilty to rape in the second degree and was sentenced to a prison term of four years, followed by 10 years of postrelease supervision.  The conviction stemmed from defendant's sexual contact with his 18–year–old cousin, who is mentally challenged.  In anticipation of defendant's release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI) in accordance with the Sex Offender Registration Act (see Correction Law art 6–C) that presumptively classified defendant as a risk level two sex offender.  The Board and the People, however, recommended an upward departure to a risk level three classification.  Following a hearing, County Court determined that an upward departure to a risk level three classification was warranted.  Defendant appeals.

We affirm.  “An upward departure from the presumptive risk level is justified when” the People establish by clear and convincing evidence the existence of “an aggravating factor, not adequately taken into account by the risk assessment guidelines” (People v. Wheeler, 144 A.D.3d 1341, 1341, 40 N.Y.S.3d 683 [2016] [internal quotation marks and citations omitted] ).  “An aggravating factor that may support an upward departure from an offender's presumptive risk level 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. Ragabi, 150 A.D.3d 1161, 1161, 52 N.Y.S.3d 655 [2017] [internal quotation marks and citations omitted], lv denied 29 N.Y.3d 919, 2017 WL 4051802 [2017] ).  Once the People satisfy this burden, the “court makes a discretionary determination whether the overall circumstances warrant a departure to prevent an underassessment of the offender's risk of sexual recidivism and dangerousness” (People v. Davis, 139 A.D.3d 1226, 1226, 31 N.Y.S.3d 656 [2016] ).

Here, defendant was assessed a total of 30 points for criminal history under risk factor 9 due to having a conviction for a “[p]rior violent felony, misdemeanor sex crime or endangering the welfare of a child.”  However, defendant's criminal history included two sexually-related misdemeanor convictions.  Specifically, defendant was convicted in 2000 for endangering the welfare of a child stemming from his sexual abuse of his then 10–year–old niece.  In 2002, defendant was convicted of the reduced charge of sexual misconduct stemming from the rape of his estranged wife, who was suffering from multiple sclerosis.  As a result of his 2002 conviction, defendant was already classified as a level two sex offender.  Furthermore, in connection with the 2012 rape conviction, defendant obtained the victim's signature on a purported health care privacy “waiver,” wherein he described himself as the victim's counselor, in an apparent attempt to prevent defendant's conduct from being disclosed.  In view of the foregoing, we find that the People proffered clear and convincing evidence of aggravating factors—particularly regarding defendant's demonstrated capacity to be diverse in his sexual offending (against a mentally challenged individual, a physically helpless adult and a child)—which were not sufficiently taken into account by the RAI, and we find no abuse of discretion in County Court's determination that an upward departure was warranted (see People v. Davis, 139 A.D.3d at 1228, 31 N.Y.S.3d 656;  People v. Tucker, 127 A.D.3d 1508, 1509, 7 N.Y.S.3d 704 [2015], lv denied 26 N.Y.3d 902, 2015 WL 5125624 [2015] ).

We also find without merit defendant's contention that he was denied the effective assistance of counsel.  Defense counsel successfully challenged the assessment of points on the RAI under risk factor 11 for use of alcohol and vigorously argued against an upward departure.  “Viewing the totality of the circumstances at the time of the representation, we find that defendant was provided with meaningful representation” (People v. Lightaul, 138 A.D.3d 1256, 1258, 30 N.Y.S.3d 739 [2016] [internal quotation marks, brackets and citation omitted], lv denied 28 N.Y.3d 907, 2016 WL 6433279 [2016];  see People v. Nichols, 80 A.D.3d 1013, 1014, 915 N.Y.S.2d 374 [2011] ).

ORDERED that the order is affirmed, without costs.

McCarthy, J.

Garry, P.J., Mulvey, Aarons and Pritzker, JJ., concur.