PEOPLE v. BROCKINGTON (2019)

 DECISION AND ORDER

The above-entitled matter was heard before this Court pursuant to the Sex Offender Registration Act. Defendant had requested a Reclassification pursuant to Corrections Law § 168-o. A Hearing was scheduled for December 13, 2018.

The Board of Examiners had previously assessed the Defendant as a Risk Level 3 (High) Offender, and opposed a downward modification as evinced in a letter signed by Kathleen Murtagh, in her capacity as a Board Examiner, dated October 26, 2018, which is adopted herein.

FINDINGS OF FACT

On September 11, 2009, Defendant pled guilty to Rape in the Third Degree and subsequently was sentenced to 2 years DOCCS with 5 years Post-Release Supervision. He was released to parole February 11, 2011 and returned to DOCCS due to a parole violation October 3, 2011. He paroled again September 6, 2012, and revoked August 19, 2013. That same day, he was discharged to the New York State Office of Mental Health (OMH), and returned to DOCCS October 23, 2013. He was again discharged to OMH February 5, 2015, returned to DOCCS April 15, 2015, and reached his maximum expiration August 12, 2015

CONCLUSIONS OF LAW

The Sex Offender Registration Act was intended to provide notice to the community of the risk of sex offenders released to their areas. There is no magic formula for making such determinations. Although the risk assessment instrument allows the Court and the Board of Examiners to utilize a tool for a numerical determination of risk, the Court must consider all the facts and circumstances so as to make an accurate assessment of the risk that each individual defendant poses.

The law provides that the Court shall review the Board's recommendation and has the discretion to set aside a recommendation in arriving at a lower or higher classification after considering the risk factors and giving the Defendant an opportunity to be heard (Corrections Law Sec., 168-n [1][2] ).

The Court shares the concerns of the Board about Defendant's failures on parole, as well as Defendant's non-completion of the ASAT or SOCTP programs while in DOCCS. Defendant has not offered a personal statement, description or verification of any present treatment to address his sexual offending behavior nor substance abuse issues. The Court, like the Board, cannot express confidence in Defendant's progress that merits a reduction in his Risk Level.

Based upon the findings and application of law, it is the determination of this Court that the Defendant, WILLIAM BROCKINGTON, remain assessed as a Risk Level 3 (High) Offender and thereby be required to maintain registry in compliance with the Correction Law of the State of New York. Accordingly, it is hereby

ORDERED, that the Defendant's risk level should be entered into the Sex Offender Registry administered by the New York State Division of Criminal Justice Services.

ORDERED, that Defendant's Application for a reduction be denied in all respects.

The above constitutes the Decision and Order of this Court.

VINCENT M. DINOLFO, J.