People v. Martin

• Decision Date: 07 December 2010
• Citation: 912 N.Y.S.2d 299,79 A.D.3d 717
• Parties: PEOPLE of State of New York, respondent, v. Roy A. MARTIN, appellant.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 299

79 A.D.3d 717

PEOPLE of State of New York, respondent,

v.Roy A. MARTIN, appellant.

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

Dec. 7, 2010.

Gary R. Eisenberg, New City, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller of counsel), for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.

Appeal by the defendant from an order of the County Court, Dutchess County (Hayes, J.), dated May 31, 2006, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

A court has the discretion to depart from the presumptive risk level, as determined by use of the risk assessment instrument, based upon the facts in the record ( see People v. Bowens, 55 A.D.3d 809, 810, 866 N.Y.S.2d 291; People v. Taylor, 47 A.D.3d 907, 907, 850 N.Y.S.2d 195; People v. Burgos, 39 A.D.3d 520, 520, 834 N.Y.S.2d 224; People v. Hines, 24 A.D.3d 524, 525, 807 N.Y.S.2d 608). However, "utilization of the risk assessment instrument will generally 'result in the proper classification in most cases so that departures will be the exception not the rule' " ( People v. Guaman, 8 A.D.3d 545, 545, 778 N.Y.S.2d 704, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed.]; see People v. Bowens, 55 A.D.3d at 810, 866 N.Y.S.2d 291; People v. Taylor, 47 A.D.3d at 908, 850 N.Y.S.2d 195; People v. Burgos, 39 A.D.3d at 520, 834 N.Y.S.2d 224; People v. Hines, 24 A.D.3d at 525, 807 N.Y.S.2d 608). The Risk Assessment Guidelines and Commentary promulgated by the Board of Examiners of Sex Offenders "contain four 'overrides' that automatically result in a presumptive risk assessment of level 3" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006 ed.] ). The People bear the burden of proving the applicability of a particular override by clear and convincing evidence ( see Correction Law § 168-n[3]; see also People v. King, 74 A.D.3d 1162, 906 N.Y.S.2d 570; People v. Chandler, 48 A.D.3d 770, 771-772, 853 N.Y.S.2d 131; People v. Thompson, 34 A.D.3d 661, 661-662, 824 N.Y.S.2d 657).

Here, the County Court found that the People established theexistence of the fourth override, that there exists "a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006 ed.] ), thus automatically resulting in a presumptive risk assessment of level three. However, as the defendant correctly claims, in expressly finding that the People established the applicability of the fourth override by a preponderance of the evidence, the court failed to hold the People to the proper burden of proof, which is proof by clear and convincing evidence ( see Correction Law § 168-n[3]; see also People v. King, 74 A.D.3d 1162, 906 N.Y.S.2d 570; People v. Chandler, 48 A.D.3d at 771-772, 853 N.Y.S.2d 131; People v. Thompson, 34 A.D.3d at 661-662, 824 N.Y.S.2d 657). Nonetheless, where, as here, the record is sufficient, this Court may make its own findings of fact and reach its own conclusions of law ( see People v. King, 74 A.D.3d 1162, 906 N.Y.S.2d 570; People v. Rivera, 73 A.D.3d 881, 900 N.Y.S.2d 437; People v. Lyons, 72 A.D.3d 776, 776, 900 N.Y.S.2d 97; People v. McKee, 66 A.D.3d 854, 854, 888 N.Y.S.2d 103; People v. Ashby, 56 A.D.3d 633, 633, 868 N.Y.S.2d 88; People v. Liguori, 48 A.D.3d 773, 854 N.Y.S.2d 140). We find that the People established by clear and convincing evidence the applicability of...