People v. Kemp

• Decision Date: 19 July 2018
• Docket Number: 526097
• Citation: 81 N.Y.S.3d 641,163 A.D.3d 1339
• Parties: The PEOPLE of the State of New York, Respondent, v. Adam KEMP, Appellant.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 1339
81 N.Y.S.3d 641

The PEOPLE of the State of New York, Respondent,
v.
Adam KEMP, Appellant.

526097

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

Calendar Date: June 4, 2018
Decided and Entered: July 19, 2018

81 N.Y.S.3d 642

Martin J. McGuinness, Saratoga Springs, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), for respondent.

Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Aarons, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from an order of the County Court of Washington County (McKeighan, J.), entered April 12, 2017, which classified defendant as a risk level two sex offender under the Sex Offender Registration Act.

In April 2014, defendant waived indictment and pleaded guilty to a superior court information charging him with one count of possessing a sexual performance by a child with the understanding that he would be sentenced to a 10–year term of probation. In anticipation of the combined sentencing and risk level classification hearing, the People prepared a risk assessment instrument that presumptively classified defendant as a risk level two sex offender. County Court thereafter sentenced defendant to the contemplated term of probation, and the parties turned their attention to defendant's risk level classification under the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA] ). In this regard, counsel for defendant stipulated/consented to the 80 points imposed under the risk assessment instrument and indicated that defendant was not requesting a hearing with respect thereto. Defense counsel did, however, request a downward departure, which the People opposed. County Court denied defendant's request for a downward departure and classified defendant as a risk level two sex offender.

This Court dismissed defendant's subsequent appeal, finding that the record failed to "reflect that a written court order was ever entered and filed" ( 130 A.D.3d 1132, 1133, 12 N.Y.S.3d 394 [2015] ). Following entry of an appropriate order, defendant again appealed and we reversed, finding that County Court "did not take into consideration the potential overestimation of defendant's risk of reoffense and the danger to the public created by the assessment of ... points" under risk factor 7 ( 148 A.D.3d 1284, 1285, 47 N.Y.S.3d 810 [2017] ). Thereafter, by order entered April 12, 2017, County Court denied defendant's request for a downward departure and again classified him as a risk level two sex offender, finding that the totality of the circumstances did not warrant a departure from the presumptive risk level classification. This appeal by defendant ensued.

We affirm. "Under SORA, a court must follow three analytical steps to determine whether ... to order a departure from the presumptive risk level indicated by the offender's guidelines factor score. At the first step, the court must decide whether the aggravating or mitigating circumstances alleged by [the] party

81 N.Y.S.3d 643

seeking a departure are, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines. At the second step, the court must decide whether the party requesting the departure has adduced sufficient evidence to meet its burden of proof in establishing that the alleged aggravating or mitigating circumstances actually exist in the case at hand.... [A]t the third step, the court must...