People v. Munafo

Garry, J.

Appeal from a judgment of the County Court of Madison County (McDermott, J.), entered December 4, 2012, which classified defendant as a risk level III sex offender and a sexually violent offender pursuant to the Sex Offender Registration Act.

In December 2003, defendant pleaded guilty in Massachusetts to two counts of rape and abuse of a child in the first degree and 14 counts of indecent assault and battery on a child under 14 years old, stemming from the sexual abuse of five underage girls over a period of years. Defendant was released to probation in December 2007 and, thereafter, sought to relocate to New York. Accordingly, the Board of Examiners of Sex Offenders completed a risk assessment instrument that presumptively classified defendant as a risk level III sex offender (115 points) in accordance with the Sex Offender Registration Act (see Correction Law art 6-C). Following a hearing, County Court classified defendant as a risk level III sex offender and a sexually violent offender. Defendant appeals, and we reverse.

The People bear the burden of establishing the proper risk level classification by clear and convincing evidence (see Correction Law § 168-n [3]; People v Belile, 108 AD3d 890, 890 [2013], lv denied 22 NY3d 853 [2013]). Here, we agree with defendant’s contention that the People failed to do so with respect to the 10 points assessed by County Court under risk factor 12, relative to acceptance of responsibility. Notably, the Board did not assess points for this risk factor. County Court relied upon evidence from defendant’s prior incarceration in Massachusetts suggesting that his distortions and rationalization regarding his crimes were “entrenched and intractable.” However, defendant thereafter engaged in further treatment. The record contains a letter from psychologist Joseph Plaud dated June 2009, stating that defendant had been participating with sex offender treatment since May 2008, and opining that defendant’s therapeutic treatment goals had been met, that he did not require additional sexual offender treatment, that he was prepared to live safely in the community, and that he was “in the lowest risk cohort” to reoffend. We note with concern that this expert opinion fails to squarely address the excuses and justifications that defendant had previously relied upon relative to his multiple serious crimes. However, the standard of proof is high, and this more recent evidence was wholly unrefuted at the brief hearing. In light of this unchallenged expert opinion, we cannot find that the requisite standard of clear and convincing evidence was met (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15-16 [2006]; compare People v Mosley, 106 AD3d 1067, 1068 [2013], lv denied 22 NY3d 854 [2013]; People v Dubuque, 35 AD3d 1011, 1011 [2006]).

Accordingly, defendant’s total risk factor score is reduced by 10 points, resulting in his presumptive classification as a risk level II sexually violent offender. However, in light of County Court’s presumptive classification of defendant as a risk level III sex offender, it did not have the opportunity to consider whether an upward modification was warranted; we therefore remit the matter for such consideration (see People v Leach, 106 AD3d 1387, 1388 [2013]; People v Stewart, 61 AD3d 1059, 1061 [2009]). In light of our holding, defendant’s remaining contentions have been rendered academic.

McCarthy and Devine, JJ., concur.