PEOPLE v. FAULKNER (2026)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Albany County (William Little, J.), entered September 8, 2022, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to rape in the first degree as the result of his engaging in sexual intercourse with a victim under the age of 13 years when he was over the age of 18 years and, in 2007, he was sentenced to 18 years in prison, to be followed by five years of postrelease supervision (see Penal Law § 130.35 [former (4) ] ).  As his release from prison approached, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI) assigning him a total of 120 points and presumptively placing him in the risk level three category.  The People initially reached the same conclusion but, after realizing that the Board had improperly relied upon a juvenile delinquency adjudication to assign points relating to defendant's criminal history, filed an amended RAI that assigned a total of 85 points and presumptively placed defendant in the risk level two category (see People v. Shaffer, 129 A.D.3d 54, 55–56, 7 N.Y.S.3d 708 [3d Dept 2015] ).  The People further sought an upward departure to a risk level three classification.  At the ensuing hearing, defendant opposed the assessment of 20 points under risk factor four (duration of offense conduct with victim) and the requested upward departure.  County Court thereafter assessed defendant with 85 points and presumptively classified him as a risk level two sex offender but granted the People's request for an upward departure, classifying defendant as a risk level three sex offender and designating him a sexually violent offender.  Defendant appeals.

We affirm.  Defendant first challenges the 20 points assessed under risk factor four for the duration of offense conduct.  Although defendant only pleaded guilty to a single act of rape, the People were entitled to rely upon reliable hearsay, in the form of the case summary and police records, reflecting that the victim described multiple instances in which defendant had sex with the victim between 2004 and 2006 (see People v. Sincerbeaux, 27 N.Y.3d 683, 688, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016];  People v. Mingo, 12 N.Y.3d 563, 571–574, 883 N.Y.S.2d 154, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009];  People v. Ortiz, 248 A.D.3d 1453, 1454–1455, 256 N.Y.S.3d 787 [3d Dept 2026] ).  Notwithstanding defendant's arguments, that information constituted clear and convincing evidence for County Court's finding that he engaged in “two or more acts of sexual contact, at least one of which is an act of sexual intercourse, ․ separated in time by at least 24 hours” to warrant the imposition of 20 points under risk factor 4 (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 10 [2006];  see People v. Masi, 195 A.D.3d 1328, 1328–1329, 149 N.Y.S.3d 377 [3d Dept 2021] ).

As for the upward departure, such “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. Sandikci, 246 A.D.3d 1210, 1211, 251 N.Y.S.3d 431 [3d Dept 2026] [internal quotation marks and citations omitted];  see People v. Weber, 40 N.Y.3d 206, 210, 196 N.Y.S.3d 352, 218 N.E.3d 688 [2023] ).  Here, “although juvenile delinquency adjudications may not be considered as crimes in assessing points for criminal history in the RAI, the underlying facts” may be considered in assessing whether a departure from the presumptive risk level is justified, and County Court accurately noted that the case summary and presentence report revealed that defendant's adjudication stemmed from his rape of a teenage victim and therefore reflected a history of sex crimes that was not taken into account by the guidelines (People v. Maurer, 220 A.D.3d 1061, 1062, 199 N.Y.S.3d 229 [3d Dept 2023];  see People v. Pruitt, 247 A.D.3d 1377, 1378–1379, 250 N.Y.S.3d 747 [3d Dept 2026];  People v. Downer, 158 A.D.3d 1074, 1075, 70 N.Y.S.3d 678 [4th Dept 2018] ).  Moreover, although the close familial relationship between defendant and the victim was not a basis for an upward departure by itself, County Court further pointed to the proof that he had repeatedly sexually abused her despite knowing that he was exposing her to the serious sexually transmitted disease he carried, circumstances exhibiting a lack of self-control on his part that was not accounted for by the guidelines (see People v. Newkirk, 241 A.D.3d 1683, 1685–1686, 242 N.Y.S.3d 417 [3d Dept 2025];  People v. Ashby, 56 A.D.3d 633, 634, 868 N.Y.S.2d 88 [2d Dept 2008], lv denied 12 N.Y.3d 707, 879 N.Y.S.2d 54, 906 N.E.2d 1088 [2009] ).  County Court thereafter weighed those aggravating factors against the mitigating circumstances cited by defendant, and we cannot say that the court abused its discretion in finding that “the totality of the circumstances warrant[ed] a departure to avoid an ․ under-assessment of ․ defendant's dangerousness and risk of sexual recidivism” (People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).

ORDERED that the order is affirmed, without costs.

Fisher, J.

Garry, P.J., Mackey, Corcoran and Ryba, JJ., concur.