SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
January 20, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from an order of the Criminal Court of the City of New York, Richmond County (Alan J. Meyer, J.), rendered October 28, 2008. The order designated defendant, after a hearing, a level two sex offender pursuant to Correction Law article 6-C.
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on January 20, 2011
PRESENTPESCE, P.J., WESTON and GOLIA, JJ
ORDERED that the order is reversed, without costs, and defendant is designated a level one sex offender.
Defendant pleaded guilty to sexual misconduct, stemming from his having had sexual intercourse with a 13-year-old victim. At the Sex Offender Registration Act (SORA) hearing, defendant did not dispute the 75 points assessed in the risk assessment instrument but argued that a downward departure was warranted based upon his acceptance of responsibility for his conduct, that no force was used by him during the incident, and that he was 19 years old at the time he committed the offense. The hearing court, without setting forth any findings of fact and conclusions of law upon which it based its determination (cf. Correction Law § 168-n ), denied defendant's application for a downward departure and classified him as a level two sex offender. Ordinarily, where a court fails to address the factors raised by a defendant in support of an application for a downward departure, the resulting order denying such application should be reversed and the matter remitted for further proceedings (see People v Flax, 71 AD3d 1451 ). However, remittal is not required here since the record on appeal is sufficient for this court to make its own findings of fact and conclusions of law (see People v Rivera, 73 AD3d 881 ).
Although defendant was classified as a level two sex offender pursuant to the risk assessment instrument, we conclude, based on the record before us, that there is clear and convincing evidence of the existence of special circumstances to warrant a downward departure, which circumstances were not adequately taken into account by the guidelines (Sex Offender Registration Act: Guidelines and Commentary at 4 [2006 ed]; see Rivera, 73 AD3d at 881; People v McKee, 66 AD3d 854 ). Defendant was 19 years old at the time that he engaged in sexual activity with the underage victim. There was no allegation or evidence of forcible compulsion. Moreover, the underlying conviction was defendant's first conviction. Under the circumstances, we conclude that defendant is not at a high risk of reoffending (see Correction Law § 168-l ; People v Goossens, 75 AD3d 1171 ).
The order designating defendant a level two sex offender is reversed and defendant is designated a level one sex offender.
Pesce, P.J., Weston and Golia, JJ., concur. Decision Date: January 20, 2011
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