People v. Germaine Freeman

• Decision Date: 09 June 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Germaine FREEMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1335
925 N.Y.S.2d 254
2011 N.Y. Slip Op. 04783

The PEOPLE of the State of New York, Respondent,
v.
Germaine FREEMAN, Appellant.

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

June 9, 2011.

[925 N.Y.S.2d 255]

Arlene Levinson, Public Defender, Hudson (Jessica D. Howser of counsel), for appellant.Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), for respondent.Before: PETERS, J.P., SPAIN, ROSE, STEIN and EGAN JR., JJ.SPAIN, J.

[85 A.D.3d 1335] Appeal from an order of the County Court of Columbia County (Nichols, J.), entered June 16, 2009, which classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty in January 2008 to rape in the third degree based on his admission to having sexual intercourse at the age of 33 with a 15–year–old girl, and he was sentenced to 1 to 3 years in prison (67 A.D.3d 1202, 889 N.Y.S.2d 119 [2009] ). In anticipation of his release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument that presumptively classified defendant as a risk level II sex offender. At the hearing that followed, County Court modified the points assessed for two of the enumerated risk factors, resulting in a presumptive risk level I classification. The court thereafter determined that an upward departure was warranted and classified defendant as a risk level II sex offender, prompting this appeal by defendant.

Defendant does not contest the individual scoring adjustments made to the risk assessment instrument. He contends only that County Court's decision to depart from the presumptive risk level classification is not supported by clear and convincing evidence. We disagree.

“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. Stewart, 77 A.D.3d 1029, 1030, 908 N.Y.S.2d 767 [2010]; People v. Beames, 71 A.D.3d 1300, 1300, 896 N.Y.S.2d 530 [2010] ). In ascribing points in the risk assessment instrument, County [85 A.D.3d 1336] Court reduced the points under Part II Criminal History, risk factor 9 for “Number and...