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

214
KA 09-01940
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VINCENT GRADY, DEFENDANT-APPELLANT.


RONALD C. VALENTINE, PUBLIC DEFENDER, LYONS (DAVID M. PARKS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (JACQUELINE MCCORMICK OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Wayne County Court (John B. Nesbitt,
J.), entered December 19, 2006. 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
unanimously 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 pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). We agree with defendant that
County Court erred in relying on certain factors to justify an upward
departure from his presumptive classification as a level two risk. “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 Howe, 49 AD3d 1302, 1302 [internal quotation marks omitted];
see People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711). Contrary
to the court’s determination, “danger to the community” is not an
aggravating factor inasmuch as sex offenders at all three risk levels
are, at varying degrees, deemed dangers to the community (see
generally Correction Law § 168-l [5]; Sex Offender Registration Act:
Risk Assessment Guidelines and Commentary, at 1 [2006]). In addition,
the court erred in relying on defendant’s history of marihuana, crack
cocaine and alcohol abuse as an aggravating factor inasmuch as
“ ‘defendant’s history of substance abuse was already taken into
account when defendant was assessed maximum points for that history
[under risk factor 11] in the risk assessment instrument [RAI]’ ”
(People v Waleski, 49 AD3d 1271; see People v Perkins, 35 AD3d 1167).
The court also erred in relying on the failure of defendant to accept
                                 -2-                           214
                                                         KA 09-01940

responsibility for his offense and on his minimization of guilt as
aggravating factors inasmuch as those factors were taken into account
under risk factor 12 in the RAI (see Risk Assessment Guidelines and
Commentary, at 15). We further conclude that the court erred in
relying on defendant’s purported learning disability and low IQ to
justify an upward departure inasmuch as the record is devoid of any
evidence that those factors are causally related to a risk of
reoffense (see People v Burgos, 39 AD3d 520; Perkins, 35 AD3d 1167;
cf. People v Chandler, 48 AD3d 770, 778; People v McCollum, 41 AD3d
1187).

     The sole remaining factor relied upon by the court to justify an
upward departure was the failure of defendant to complete substance
abuse counseling. We conclude on the record before us that such a
factor, without more, is insufficient to justify an upward departure.
Inasmuch as the People raise no additional aggravating factors,
defendant is properly classified as a level two risk (see generally
Burgos, 39 AD3d 520; Perkins, 35 AD3d 1167). We therefore modify the
order accordingly.




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
