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People v. Martin

79 A.D.3d 717 Court N.Y. App. Div. Decision date 2010-12-07 English

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The People of the State of New York, Respondent, v Roy A. Martin, Appellant.
[912 NYS2d 299]

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 AD3d 809 , 810 [2008]; People v Taylor, 47 AD3d 907 , 907 [2008]; People v Burgos, 39 AD3d 520 , 520 [2007]; People v Hines, 24 AD3d 524 , 525 [2005]). 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 AD3d 545 [2004], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997]; see People v Bowens, 55 AD3d at 810 ; People v Taylor, 47 AD3d at 908 ; People v Burgos, 39 AD3d at 520 ; People v Hines, 24 AD3d at 525 ). 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]). 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 AD3d 1162 [2010]; People v Chandler, 48 AD3d 770 , 771-772 [2008]; People v Thompson, 34 AD3d 661 , 661-662 [2006]).

Here, the County Court found that the People established the

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existence 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]), 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 AD3d 1162 [2010]; People v Chandler, 48 AD3d at 771-772 ; People v Thompson, 34 AD3d at 661-662 ). 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 AD3d 1162 [2010]; People v Rivera, 73 AD3d 881 [2010]; People v Lyons, 72 AD3d 776 , 776 [2010]; People v McKee, 66 AD3d 854 , 854 [2009]; People v Ashby, 56 AD3d 633 , 633 [2008]; People v Liguori, 48 AD3d 773 [2008]). We find that the People established by clear and convincing evidence the applicability of the fourth override, that there has been “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]), and that, by operation of the override, the defendant was presumptively a level three sex offender. To the extent the defendant sought a downward departure from the level three determination resulting from the automatic override, the defendant failed to present clear and convincing evidence of the existence of special circumstances to warrant a downward departure. Rivera, J.P, Dickerson, Lott and Roman, JJ., concur.

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