People v. Wells

• Decision Date: 20 December 2012
• Citation: 956 N.Y.S.2d 325,2012 N.Y. Slip Op. 08844,101 A.D.3d 1407
• Parties: The PEOPLE of the State of New York, Respondent, v. Josiah WELLS, Appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1407

956 N.Y.S.2d 325

2012 N.Y. Slip Op. 08844

The PEOPLE of the State of New York, Respondent,

v.Josiah WELLS, Appellant.

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

Dec. 20, 2012.

Eugene P. Grimmick, Troy, for appellant.

Richard J. McNally Jr., District Attorney, Troy (Joseph P. Brucato of counsel), for respondent.

Before: PETERS, P.J., ROSE, LAHTINEN, MALONE JR. and GARRY, JJ.

ROSE, J.

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 A.D.3d 1460, 1460, 944 N.Y.S.2d 354 [2012] [internal quotation marks and citation omitted]; see People v. Burch, 90 A.D.3d 1429, 1430, 936 N.Y.S.2d 351 [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 A.D.3d 1237, 1238–1239, 947 N.Y.S.2d 196 [2012];see also People v. Roberts, 54 A.D.3d 1106, 1107, 863 N.Y.S.2d 837 [2008],lv. denied11 N.Y.3d 713, 873 N.Y.S.2d 268, 901 N.E.2d 762 [2008] ). Although County Court relied upon People v. Stewart, 77 A.D.3d 1029, 908 N.Y.S.2d 767 [2010],People v. Harris, 50 A.D.3d 1556, 856 N.Y.S.2d 791 [2008],lv. denied10 N.Y.3d 716, 862 N.Y.S.2d 337, 892 N.E.2d 403 [2008] and People v. Leibach, 39 A.D.3d 1093, 832 N.Y.S.2d 825 [2007],lv. denied9 N.Y.3d 806, 842 N.Y.S.2d 781, 874 N.E.2d 748 [2007] in support of the upward departure, we cannot agree that the circumstances here, while certainly reprehensible, present similar aggravating factors beyondthe 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 A.D.3d 401, 401, 937 N.Y.S.2d 583 [2012];accord People v. Jamison, 96 A.D.3d at 1238–1239, 947 N.Y.S.2d 196;compare People v. Stewart, 77 A.D.3d at 1030, 908 N.Y.S.2d 767). 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...