        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1026
KA 11-00996
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CARLOS DIAZ, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Monroe County Court (Frank P. Geraci,
Jr., J.), entered March 21, 2011. The order determined that defendant
is a level three risk pursuant to the Sex Offender Registration Act.

     It is hereby ORDERED that the order so appealed from is modified
on the law by determining that defendant is a level two risk pursuant
to the Sex Offender Registration Act and as modified the order is
affirmed without costs.

     Memorandum: Defendant appeals from an order determining that he
is a level three risk under the Sex Offender Registration Act
(Correction Law § 168 et seq.). Although the risk assessment
instrument (RAI) assessed defendant as a level two risk, the Board of
Examiners of Sex Offenders recommended an upward departure based on
the pattern of defendant’s sexual offenses and his diagnosis of
schizophrenia. County Court concluded that an upward departure was
warranted and thus determined that defendant is a level three risk.
That was error.

     “A court may make an upward departure from a presumptive risk
level when, after consideration of the indicated factors[,] . . . [the
court determines that] there exists an aggravating . . . factor of a
kind, or to a degree, not otherwise adequately taken into account by
the [risk assessment] guidelines” (People v Abraham, 39 AD3d 1208,
1209 [internal quotation marks omitted]; see People v Grady, 81 AD3d
1464, 1464). Here, the court erred by basing its upward departure on
factors already taken into account by the RAI, i.e., the short period
of time between defendant’s offenses and defendant’s pattern of
touching the victims under their clothing, targeting strangers and
using forcible compulsion. Additionally, the court erred in relying
on defendant’s alleged mental illness to justify the upward departure
inasmuch as the record contains no admissible evidence that defendant
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                                                         KA 11-00996

in fact suffers from a mental illness, and the record is devoid of
evidence that the alleged mental illness is “ ‘causally related to any
risk of reoffense’ ” (People v Perkins, 35 AD3d 1167, 1168; see Grady,
81 AD3d at 1465; see generally Correction Law § 168-n [3]; People v
Hayward, 52 AD3d 1243, 1244). Thus, we conclude that defendant is
properly classified as a level two risk (see Perkins, 35 AD3d at
1168), and we therefore modify the order accordingly.

     All concur except FAHEY, J., who dissents and votes to affirm in
the following Memorandum: I respectfully dissent and would affirm.
Here, County Court determined that defendant was a level three risk
based upon two prior sexual offenses committed by him. The first of
defendant’s sexual offenses occurred when he was in an inpatient
psychiatric unit. Defendant pushed his victim, a social worker, into
a restroom and touched her buttocks and vaginal areas. The second
sexual offense also involved defendant’s use of aggression against his
victim. In that incident, defendant followed a woman who was a
stranger to him into a building and onto an elevator. When the woman
exited the elevator with defendant, he told her that he needed a hug.
The woman refused, and defendant then pinned her against a wall,
pulled up her dress, and touched her vagina and anus under her
clothing.

     Shortly before defendant’s release from incarceration, the Board
of Examiners of Sex Offenders (Board) prepared a risk assessment
instrument (RAI), wherein it assigned defendant points under the
following risk factors: 1 (use of violence [forcible compulsion]); 2
(sexual contact with victim [under clothing]); 7 (relationship with
victim [stranger]); 8 (age of first sexual misconduct 20 or less); 9
(number of prior crimes [prior violent felony or misdemeanor sex
crime]); 10 (recency of prior offense less than three years); and 11
(drug or alcohol abuse [history of abuse]). The Board determined that
defendant had a risk assessment score of 105 points, which placed him
at the high end of the range for a level two risk pursuant to the Sex
Offender Registration Act ([SORA] Correction Law § 168 et seq.). The
Board, however, recommended an upward departure from the presumptive
risk level based on the pattern of defendant’s sexual offenses, his
diagnosis of schizophrenia, and his history of marihuana abuse.
Relying on the Board’s case summary, the court determined that
defendant is a level three risk based on defendant’s conviction of
“forcibly sexually abusing two women who were strangers to him,” his
“diagnosis of a serious mental disorder and [his] history of abuse of
marijuana.”

     “A court may make an upward departure from a presumptive risk
level when, after consideration of the indicated factors . . . [,]
there exists an aggravating . . . factor of a kind, or to a degree,
not otherwise adequately taken into account by the [risk assessment]
guidelines” (People v Hueber, 81 AD3d 1466, 1467, lv denied 17 NY3d
701, cert denied ___ US ___, 132 S Ct 294 [internal quotation marks
omitted]). “ ‘The People bear the burden of establishing the
appropriate risk level classification by clear and convincing evidence
[and] [s]uch evidence may consist of reliable hearsay including, among
other things, the presentence investigation report, [RAI] and case
                                 -3-                          1026
                                                         KA 11-00996

summary’ ” (People v McFall, 93 AD3d 962, 963; see Correction Law §
168-n [3]; People v Pettigrew, 14 NY3d 406, 409).

     Here, the People met their burden of establishing that an
aggravating factor not accounted for in the RAI existed, warranting an
upward departure from the presumptive risk level. Although the court
relied upon factors accounted for in the RAI, i.e., defendant’s drug
abuse, use of forcible compulsion and his targeting of strangers, as a
basis for the upward departure, the court also relied on a factor not
accounted for in the RAI, i.e., defendant’s serious mental disorder.
In my view, that factor supports the court’s determination to make an
upward departure. There should be no dispute that schizophrenia is
marked by a breakdown of thought processes and poor emotional
responses and typically manifests itself in disorganized thinking and
social dysfunction. That disorder, coupled with the nature of
defendant’s attacks——he appears to struggle with social boundaries and
is prone to preying on women who are alone——compels the conclusion
that defendant should be subjected to greater scrutiny so long as he
is free within the community.

     Finally, I cannot agree with the majority that the record does
not support the conclusion that defendant’s significant mental
disorder is causally related to his risk of reoffense. While there is
no requirement that the unsigned case summary to which the majority
refers always be credited, it “meet[s] the ‘reliable hearsay’ standard
for admissibility at SORA proceedings” and thus was properly
considered by the court (People v Mingo, 12 NY3d 563, 573; see
Pettigrew, 14 NY3d at 408-409). In my view, the connection between
defendant’s schizophrenia and his risk of reoffending implied in the
case summary is neither unduly speculative nor undermined by other
more compelling evidence (cf. Mingo, 12 NY3d at 572-573). I would
thus affirm.




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
