PEOPLE v. RICHARDSON (2022)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Albany County (Stephen W. Herrick, J.), entered August 5, 2015, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

In 2012, defendant pleaded guilty to burglary in the third degree as a sexually motivated felony and was sentenced to four years in prison to be followed by 15 years of postrelease supervision.  In preparation for his release from prison in 2015, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI) under the Sex Offender Registration Act (see Correction Law art 6–C) that assigned him a total of 95 points and presumptively placed him in the risk level two classification, without a recommendation for an upward or downward departure.  The People, in turn, prepared an RAI that presumptively classified defendant as a risk level two sex offender (105 points) and requested an upward departure to a risk level three classification.¹  Defendant contested the assessment of points under certain factors and requested a downward departure.  Following a hearing, County Court agreed with the People's assessment of 105 points, placing him at a presumptive risk level two classification, but that an upward departure to a risk level three was warranted based upon various aggravating factors including defendant's history of sexual conduct.  This appeal ensued.

We affirm.  Initially, although County Court did not sufficiently set forth its findings of fact and conclusions of law in its written order, the court's oral findings and conclusions, which are supported by the record, permit intelligent review (see Correction Law § 168–n [3];  People v. Shook, 199 A.D.3d 1177, 1178, 156 N.Y.S.3d 595 [3d Dept. 2021];  People v. Headwell, 156 A.D.3d 1263, 1264, 66 N.Y.S.3d 580 [3d Dept. 2017], lv denied 31 N.Y.3d 902, 2018 WL 1473542 [2018]).  Turning to the merits, defendant argues that County Court abused its discretion in granting the People's request for an upward departure because defendant's extensive criminal history was already taken into account within the RAI. We disagree.

“An 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. Ross, 198 A.D.3d 1196, 1196, 155 N.Y.S.3d 632 [3d Dept. 2021] [internal quotation marks and citations omitted], lv denied 38 N.Y.3d 903, 2022 WL 839464 [2022];  accord People v. Huether, 205 A.D.3d 1233, 1235, 167 N.Y.S.3d 650 [3d Dept. 2022];  People v. Courtney, 202 A.D.3d 1246, 1249, 162 N.Y.S.3d 533 [3d Dept. 2022]).  “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 risk assessment instrument” (People v. Ross, 198 A.D.3d at 1196, 155 N.Y.S.3d 632 [internal quotation marks and citations omitted];  see People v. Remonda, 158 A.D.3d 904, 904, 70 N.Y.S.3d 606 [3d Dept. 2018], lv denied 31 N.Y.3d 910, 2018 WL 2977998 [2018]).

The record reflects that defendant has a history of committing offenses constituting public lewdness.  Although “these offenses are not classified as ‘sex crimes’ for purposes of scoring on the risk assessment instrument, they have a sexual component” (People v. LaPorte, 119 A.D.3d 758, 758, 989 N.Y.S.2d 309 [2d Dept. 2014], lv denied 24 N.Y.3d 906, 2014 WL 5368885 [2014];  see Correction Law § 168–a [2];  Penal Law § 245.00;  People v. Brown, 45 A.D.3d 1123, 1124, 846 N.Y.S.2d 678 [3d Dept. 2007], lv denied 10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010 [2008]), and “[t]he commission of these offenses is an aggravating factor which tends to establish a higher likelihood of reoffense or danger to the community” (People v. LaPorte, 119 A.D.3d at 758, 989 N.Y.S.2d 309 [internal quotation marks and citation omitted];  see People v. Brown, 45 A.D.3d at 1124, 846 N.Y.S.2d 678).  Upon determining by clear and convincing evidence the existence of this aggravating factor not adequately taken into account by the risk assessment guidelines (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary [2006]), we find that County Court providently exercised its discretion in granting the People's application for an upward departure (see People v. Davis, 139 A.D.3d 1226, 1227, 31 N.Y.S.3d 656 [3d Dept. 2016];  People v. LaPorte, 119 A.D.3d at 758, 989 N.Y.S.2d 309;  People v. Brown, 45 A.D.3d at 1124, 846 N.Y.S.2d 678).

Defendant's specific challenge to the 20 points assessed under risk factor 3 was not raised below and is therefore not preserved (see People v. Ellis, 204 A.D.3d 1388, 1390, 166 N.Y.S.3d 772 [4th Dept. 2022]), and, even if it were properly before us, we would find that his contention “that the court erred in assessing points under risk factor 3 ‘is academic because, even without the 20 points at issue, defendant would still qualify as a level two risk’ ” (id. [brackets omitted], quoting People v. Robinson, 160 A.D.3d 1441, 1442, 72 N.Y.S.3d 886 [4th Dept. 2018];  see People v. Huether, 205 A.D.3d at 1233, 167 N.Y.S.3d 650;  People v. Lacy, 185 A.D.3d 416, 417, 124 N.Y.S.3d 787 [1st Dept. 2020], lv denied 35 N.Y.3d 916, 2020 WL 6189193 [2020];  People v. Colon, 146 A.D.3d 822, 823, 43 N.Y.S.3d 921 [2d Dept. 2017], lv denied 29 N.Y.3d 904, 2017 WL 1223673 [2017];  People v. Riddick, 139 A.D.3d 1121, 1122, 30 N.Y.S.3d 764 [3d Dept. 2016]).

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   Although the People's initial RAI presumptively classified defendant as a risk level three sex offender with 125 points, the People subsequently amended that score by reducing it by 20 points, to 105 points.

Egan Jr., J.P.

Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ., concur.