June 6, 2013
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
KENNETH J. FILKINS II, Appellant.
Calendar Date: March 22, 2013
Marcy I. Flores, Warrensburg, for appellant.
Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.
Before: Lahtinen, Stein, Spain and Garry, JJ.; Rose, J.P., vouched in.
MEMORANDUM AND ORDER
Appeal from an order of the County Court of Washington County (McKeighan, J.), entered November 4, 2011, which classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act.
Defendant pleaded guilty to attempted rape in the second degree and was sentenced to 90 days of incarceration and 10 years of probation. Consequently, the People submitted a risk assessment instrument (hereinafter RAI) in accordance with the Sex Offender Registration Act (see Correction Law art 6-C), which presumptively classified defendant as a risk level II sex offender. At defendant's subsequent appearance before County Court with counsel, the court declined his request for a downward departure and classified defendant as a risk level II sex offender. Defendant now appeals.
Initially, we agree with defendant that 20 points were improperly assessed for risk factor 4, a "[c]ontinuing course of sexual misconduct." While the record reflects that sexual contact between defendant and the victim occurred on two consecutive evenings, it lacks clear and convincing evidence that the two acts were separated by at least 24 hours (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 10 ; People v Redcross, 54 A.D.3d 1116, 1116-1117 ; compare People v Simmonds, 74 A.D.3d 1505, 1506 ). However, we find that 15 points were appropriately assessed for risk factor 11, a history of "[d]rug or [a]lcohol abuse, " based on the evidence that defendant smoked marihuana with the victim during the period that she was at his apartment and that he had been drinking prior to one of the sexual encounters, and upon his subsequent admission that he was a daily user of marihuana at the time of the offense (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15; People v Palmer, 20 N.Y.3d 373, 377-378 ; People v Lerch, 66 A.D.3d 1088, 1089 , lv denied 13 N.Y.3d 715 ). We also conclude that defendant was properly assessed 10 points for risk factor 8, "[a]ge at first act of sexual misconduct, " as defendant was 19 years of age at the time of the offense and points are assessed when offenses are committed by those "20 or less" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 13; see People v Robertson, 101 A.D.3d 1671, 1672 ).
Nonetheless, we conclude that remittal is required with respect to defendant's request for a downward departure. Whether to grant a downward departure from the presumptive risk level is a matter within the sound discretion of the trial court and is only warranted where a mitigating factor exists that is not otherwise taken into account by the guidelines (see People v Moss, 105 A.D.3d 1099, 1099 ; People v Kotzen, 100 A.D.3d 1162, 1162-1163 , lv denied 20 N.Y.3d 860 ; People v Briggs, 86 A.D.3d 903, 905 ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4). It is defendant's burden to establish the existence of a mitigating factor (see People v Moss, 105 A.D.3d at 1099; People v Kotzen, 100 A.D.3d at 1162-1163; but see People v Wyatt, 89 A.D.3d 112, 127-128 , lv denied 18 N.Y.3d 803 ).
Here, in reaching a determination with respect to defendant's application for a downward departure, County Court's written order did not set forth its findings of fact and conclusions of law as required by Correction Law § 168-n (3), and its limited oral findings were not sufficiently detailed to permit intelligent review (see People v Kennedy, 79 A.D.3d 1470 ; People v Beames, 71 A.D.3d 1300, 1301 ; People v Burke, 68 A.D.3d 1175, 1177 ; People v Crowley, 64 A.D.3d 918, 929 ) . Without a clear explanation of County Court's findings, and considering that, as a result of our decision herein, there is now only a five point discrepancy between defendant's score (75 points) and a risk level I classification, we cannot ascertain whether County Court would have reached a different result had defendant's request for a downward departure been considered using the proper assessment of points (see generally People Cruz, 28 A.D.3d 819, 820 ). Under these circumstances, we remit the matter to County Court for a disposition that complies with the statutory requirements.
Rose, J.P., Lahtinen, Spain and Garry, JJ., concur.
ORDERED that the order is reversed, on the law, without costs, and matter remitted to the County Court of Washington County for further proceedings not inconsistent with this Court's decision.