PEOPLE v. WELLS

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The PEOPLE of The State of New York, Respondent, v. Josiah WELLS, Appellant.

Decided: December 20, 2012

Before: PETERS, P.J., ROSE, LAHTINEN, MALONE JR. and GARRY, JJ. Eugene P. Grimmick, Troy, for appellant. Richard J. McNally Jr., District Attorney, Troy (Joseph P. Brucato of counsel), for respondent.

Appeal from an order of the County Court of Rensselaer County (Ceresia, J.), entered August 11, 2011, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

In satisfaction of a four-count indictment charging defendant with engaging in anal sexual conduct with an eight-year-old girl, defendant pleaded guilty to sexual abuse in the first degree and was sentenced to six months in jail and 10 years of probation. Defendant, who was 16 years old at the time of his crime, was presumptively classified under the Sex Offender Registration Act (see Correction Law art 6–C) as a risk level II sex offender with a score of 105 points.1 At the hearing, County Court reduced defendant's total risk factor score to 85 points, which still left his score within the risk level II classification. Nonetheless, the court concluded that an upward modification was required under the circumstances and classified defendant as a risk level III sex offender. This appeal by defendant ensued.

We reverse. “An upward departure from a presumptive risk 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. O'Connell, 95 AD3d 1460, 1460 [2012] [internal quotation marks and citation omitted]; see People v. Burch, 90 AD3d 1429, 1430 [2011] ). In our view, the aggravating factor relied upon by County Court, i.e., “the length and nature of the [d]efendant's abuse of the victim,” was adequately taken into consideration by the assessment of 20 points on the risk assessment instrument for continuing course of sexual misconduct, and nothing in the record supports an upward departure (see People v. Jamison, 96 AD3d 1237, 1238–1239 [2012]; see also People v. Roberts, 54 AD3d 1106, 1107 [2008], lv denied 11 NY3d 713 [2008] ). Although County Court relied upon People v. Stewart (77 AD3d 1029 [2010] ), People v. Harris (50 AD3d 1556 [2008], lv denied 10 NY3d 716 [2008] ) and People v. Leibach (39 AD3d 1093 [2007], lv denied 9 NY3d 806 [2007] ) in support of the upward departure, we cannot agree that the circumstances here, while certainly reprehensible, present similar aggravating factors beyond the points already assessed. We also note that “defendant's point score of 85 was well below the threshold for a level III adjudication” and the People did not request an upward departure (People v. Aguilar, 92 AD3d 401, 401 [2012]; accord People v. Jamison, 96 AD3d at 1238–1239; compare People v. Stewart, 77 AD3d at 1030). Under these circumstances, we conclude that an upward departure was not warranted.

Lastly, we have reviewed defendant's contention that County Court abused its discretion by not directing a downward departure from the presumptive risk classification to a risk level I and find no mitigating circumstances that would support such a result (see People v. Jamison, 96 AD3d at 1238; People v. Johnson, 77 AD3d 1039, 1040 [2010] ).

ORDERED that the order is reversed, on the law, without costs, and defendant is classified as a risk level II sex offender under the Sex Offender Registration Act.

FOOTNOTES

1.  Although the proposed risk assessment instrument initially submitted to County Court indicated that defendant was presumptively classified as a risk level III sex offender with a score of 115 points, the People acknowledged at the hearing that 10 points were mistakenly added. The resulting total of 105 points presumptively classified defendant as a risk level II offender.

ROSE, J.

PETERS, P.J., LAHTINEN, MALONE JR. and GARRY, JJ., concur.

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