People v. McKelvin

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about March 28, 2013, which adjudicated defendant a level three sexual offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously modified, on the law and as a matter of discretion in the interest of justice, to the extent of reducing the adjudication to that of a level two offender, and otherwise affirmed, without costs. Initially, we note that defendant’s correct point score is 95, supporting a presumptive level two adjudication. To the extent that the People and defendant are arguing, respectively, that points should be added or subtracted, we find those arguments to be unavailing. The court erred in finding that defendant’s mental retardation warranted an upward departure to level three. The essence of the court’s reasoning was that defendant lacked the ability to appreciate the inappropriateness of his actions, or could not control his impulsive behavior. A departure from the presumptive risk level is warranted “where there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (People v Johnson, 11 NY3d 416, 421 [2008] [internal quotation marks omitted]). The guidelines clearly provide for an automatic override to a presumptive level three designation where there has been a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior. Here, no such clinical assessment has been made, and thus an upward departure on this basis was improper (see People v Chandler, 48 AD3d 770 [2d Dept 2008]). To the extent the upward departure was based on factors other than defendant’s mental retardation, those factors were adequately taken into account by the guidelines, or were not established by clear and convincing evidence. In any event, the upward departure was an improvident exercise of discretion. We perceive no basis for a downward departure to level one (see People v Gillotti, 23 NY3d 841 [2014]). Concur — Friedman, J.P, Acosta, Moskowitz, Richter and Kapnick, JJ.