The defendant seeks a downward departure from the presumptive risk level two to a risk level one. The defendant and defense counsel appeared for a hearing on August 19, 1998. The Bronx District Attorney’s Office declined to appear indicating that it routinely takes no position with regard to sex offender classifications. The State Attorney General’s Office was notified, but did not appear. No one has moved on behalf of the State for an upward departure from the level two recommendation of the Board.
Due process mandates that the State must bear the burden of proof to support its proposed risk level assessment by clear and convincing evidence. However, even where departure from the calculated presumptive risk level is not requested, it is still appropriate for the court to independently consider whether a departure from the recommendation is warranted. The board serves only in an advisory capacity similar to the role served by a probation department in submitting a sentencing recommendation. The court is not bound by the recommendation of the board and, in the exercise of its discretion, may depart from the recommendation and determine the sex offender’s risk level based upon the facts and personal injury circumstances that appear in the record.
Similarly, the court need not accept at face value the allocation of risk factor points by the Board, even where there has been no challenge. The court may still wish to scrutinize the underlying circumstances that the Board relied upon in assessing risk. This is especially true when the information in the record before the court appears to be more extensive than that relied upon by the Board. In assessing risk, the Board or the court may rely upon the case file, the sex offender’s admissions, the victim’s statements, the evaluative reports of the supervising probation officer, parole officer, or corrections counselor, or any other reliable source. After considering the Board’s recommendation, any victim’s statement, any statement or materials submitted by the sex offender, and reliable information in the case file, the sentencing court bears the ultimate responsibility to determine whether the Board’s presumptive risk level recommendation appropriately reflects the risk posed to the public, or whether departure from that recommendation is warranted.
An upward or downward departure from the presumptive risk level is warranted where there is clear and convincing evidence of the existence of an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines. The court should consider departure from the presumptive risk level where either the state or the defendant seeks an upward or downward departure and offers clear and convincing evidence to support departure. The court should sua sponte depart from the presumptive risk level when it is clearly evident from the record before the personal injury court that special circumstances warrant departure.
An objective risk assessment instrument, no matter how well designed, will not fully capture the nuances of every case. In this case, the Board’s presumptive risk level calculations resulted in an under-assessment of this sex offender’s risk to the public safety. Firstly, in allocating points to the defendant with respect to the current offense, the Board chose not to assess any points for more than one victim. The existence of multiple victims of sexual contact is indicative of compulsive behavior, and is therefore a significant factor in assessing the offender’s risk of re-offense. To determine the number of victims, neither the Board nor the court is limited solely to the dispositional charge to which the defendant pled guilty. In this case, although the defendant was charged and pled guilty to fondling an eight year old boy, the presentence report notes that the mother of the victim stated, “the defendant also kissed my four year old son Leo, in the mouth. Leo has never forgotten the accident and he is now afraid of all men.” The Board did not assess any points for the defendant kissing a four year old boy in the mouth. However, the defendant’s conduct in this regard constitutes “sexual contact” within the meaning of the statute defining first degree sexual abuse. In determining risk assessment under the Guidelines, sexual contact includes intimate touching or kissing for the purpose of sexual gratification.
The Board also did not assess any points against the defendant for his non-acceptance of responsibility. A guilty plea may provide some evidence of a defendant’s acceptance of responsibility. However, it does not, by itself, constitute a sincere acknowledgment of personal culpability. For example, an offender who pleads guilty but tells his presentence investigator that he did so only to escape a state prison sentence has not accepted responsibility.