Opinion
464 KA 15–01931
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Chaz E. ROBINSON, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from an order classifying him as a level three risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). Although the risk assessment instrument prepared by the Board of Examiners of Sex Offenders classified defendant as a presumptive level two risk, County Court granted the People's request for an upward departure to a level three risk based on defendant's alleged diagnosis of schizophrenia. That was error. Even if defendant in fact suffers from schizophrenia, "the record is devoid of evidence that the alleged mental illness is causally related to any risk of reoffense" ( People v. Diaz, 100 A.D.3d 1491, 1491, 954 N.Y.S.2d 338 [4th Dept. 2012], lv denied 20 N.Y.3d 858, 2013 WL 452200 [2013] [internal quotation marks omitted]; see People v. Burgos, 39 A.D.3d 520, 520–521, 834 N.Y.S.2d 224 [2d Dept. 2007] ; People v. Zehner, 24 A.D.3d 826, 827, 804 N.Y.S.2d 852 [3d Dept. 2005] ; cf. People v. Collins, 104 A.D.3d 1220, 1221, 960 N.Y.S.2d 579 [4th Dept. 2013], lv denied 21 N.Y.3d 855, 2013 WL 1876251 [2013] ; People v. Andrychuk, 38 A.D.3d 1242, 1243, 831 N.Y.S.2d 795 [4th Dept. 2007], lv denied 8 N.Y.3d 816, 839 N.Y.S.2d 455, 870 N.E.2d 696 [2007] ). Contrary to the People's contention, the fact that defendant exhibits many symptoms of schizophrenia does not supply the necessary clear and convincing evidence that the disorder is causally related to an increased risk of future sex offending (see generally Zehner, 24 A.D.3d at 827, 804 N.Y.S.2d 852, citing § 168–l [5][a][i] ). We therefore modify the order by determining that defendant is a level two risk.
Finally, defendant's contention that the court erred in assessing certain risk factor points is academic because, even without the 30 points at issue, defendant would still qualify as a level two risk (see People v. Colon, 146 A.D.3d 822, 823, 43 N.Y.S.3d 921 [2d Dept. 2017], lv denied 29 N.Y.3d 904, 2017 WL 1223673 [2017] ; People v. Riddick, 139 A.D.3d 1121, 1122, 30 N.Y.S.3d 764 [3d Dept. 2016] ; People v. Vasquez, 37 A.D.3d 193, 193, 829 N.Y.S.2d 475 [1st Dept. 2007], lv denied 8 N.Y.3d 812, 836 N.Y.S.2d 551, 868 N.E.2d 234 [2007] ).
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.