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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Johnny JOHNSON, Appellant.

Decided: November 19, 2009

Before:  MERCURE, J.P., ROSE, LAHTINEN, MALONE JR. and GARRY, JJ. Matthew T. Dunn, New Paltz, for appellant. Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.

Appeal from an order of the County Court of Sullivan County (LaBuda, J.), entered March 27, 2006, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

In 2002, defendant was sentenced to a prison term of five years and five years of postrelease supervision after pleading guilty to one count of rape in the first degree based upon having sexual intercourse with a 12-year-old girl.   Prior to his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument which presumptively classified defendant as a risk level II sex offender (95 points) in accordance with the Sex Offender Registration Act (see Correction Law art. 6-C).   Nevertheless, the Board recommended an upward departure to risk level III status as a result of defendant's conviction for endangering the welfare of a child, which was based on inappropriate sexual behavior and encompassed acts performed after those leading to his conviction for rape.   Following a risk assessment hearing, County Court determined that defendant was a sexually violent offender and placed him in the risk level III classification.   Defendant now appeals.

 We must reverse.   Although a departure from the presumptive risk level may be warranted when an aggravating or mitigating factor exists that is not adequately taken into account by the guidelines (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 4 [2006] ), such special circumstances must be proven by clear and convincing evidence (see People v. Miranda, 24 A.D.3d 909, 910, 806 N.Y.S.2d 729 [2005] ).   Moreover, County Court is required to “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based” (Correction Law § 168-n[3] ).   Here, despite evidence in the record indicating that an upward departure might be warranted, the People offered no proof of such and County Court's findings in that regard are insufficiently detailed to permit intelligent appellate review (cf. People v. Roberts, 54 A.D.3d 1106, 1106-1107, 863 N.Y.S.2d 837 [2008], lv. denied 11 N.Y.3d 713, 873 N.Y.S.2d 268, 901 N.E.2d 762 [2008] ).   County Court's sole articulated rationale for its determination was a section of the presentence investigation report which described the events leading to defendant's rape conviction.   Inasmuch as that crime was adequately covered by the risk assessment instrument, however, it cannot be considered an aggravating factor (see People v. Roberts, 54 A.D.3d at 1107, 863 N.Y.S.2d 837).

 Finally, we are unpersuaded by the People's argument that defendant failed to preserve the issue.   Defendant challenged the proposed elevation of his classification to risk level III and had no reason to anticipate that County Court would focus solely upon his original offense (cf. People v. Oginski, 35 A.D.3d 952, 953, 824 N.Y.S.2d 810 [2006] ).   Accordingly, the matter must be remitted for the court's issuance of findings of fact and conclusions of law as to whether defendant's subsequent conviction for endangering the welfare of a child warrants an upward departure from his presumptive classification as a risk level II sex offender (see People v. Marr, 20 A.D.3d 692, 693, 798 N.Y.S.2d 260 [2005] ).

ORDERED that the order is reversed, on the law, without costs, and matter remitted to the County Court of Sullivan County for further proceedings not inconsistent with this Court's decision.



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