People v. Beames
| Decision Date | 18 March 2010 |
| Parties | The PEOPLE of the State of New York, Respondent,v.Patrick J. BEAMES, Appellant. |
| Court | New York Supreme Court — Appellate Division |
71 A.D.3d 1300
896 N.Y.S.2d 530
2010 N.Y. Slip Op. 02037
The PEOPLE of the State of New York, Respondent,
v.
Patrick J. BEAMES, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
March 18, 2010.
[896 N.Y.S.2d 530]
Teresa C. Mulliken, Harpersfield, for appellant.Richard D. Northrup Jr., District Attorney, Delhi (Amy B. Merklen of counsel), for respondent.
[896 N.Y.S.2d 531]
Before: CARDONA, P.J., PETERS, KAVANAGH, McCARTHY and EGAN JR., JJ.McCARTHY, J.
[71 A.D.3d 1300] Appeal from an order of the County Court of Delaware County (Becker, J.), entered February 19, 2009, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
In 2007, defendant was sentenced to a prison term of 1 to 3 years after pleading guilty to rape in the third degree, in full satisfaction of a three-count superior court information. Prior to his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument that presumptively classified defendant as a risk level II sex offender (100 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 based upon defendant's criminal history and his apparent attraction to adolescent girls. Following a risk assessment hearing, County Court classified defendant as a risk level III sex offender, prompting this appeal.
We reverse. “To justify an upward departure from a presumptive risk classification, an aggravating factor must exist which was not otherwise adequately taken into consideration by the risk assessment guidelines, and the court's finding of such a factor must be supported by clear and convincing evidence” ( People v. Brown, 45 A.D.3d 1123, 1124, 846 N.Y.S.2d 678 [2007], lv. denied 10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010 [2008] [citations omitted]; see People v. McElhearn, 56 A.D.3d 978, 979, 868 N.Y.S.2d 783 [2008], lv. denied 13 N.Y.3d 706, 2009 WL 2998122 [2009] ). Further, County Court must “render an order setting forth its determinations [71 A.D.3d 1301] and the findings of fact and conclusions of law on which the determinations are based” (Correction Law § 168–n[3] ). Here, County Court purportedly relied on defendant's prior criminal history involving young girls, his denial of a history of drug and alcohol abuse and a clinical assessment that he is unable to control impulsive sexual behavior as...
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