The above-listed matter was heard before this court pursuant to the Sex Offender Registration Act. The defendant having requested a hearing to determine his risk level, a hearing was conducted on June 3, 2005. The defendant appeared with counsel, Second Assistant Public Defender Roger Brazill.

The Board of Examiners had assessed the defendant as a Risk Level 3 (High) Offender. The board had determined that 130 points should be assessed against the defendant pursuant to the risk assessment instrument. The total was reached by charging the following:

25 points for the acts involving deviate sexual intercourse

30 points for the victim being aged 10 or less

30 points for the defendant having a prior conviction for Endangering the Welfare of a Child

15 points for the defendant having a history of drug abuse

15 points for the defendant not accepting responsibility

15 points for the defendant being released without supervision

The defense opposed the Board of Examiners assessment arguing that although the defendant was convicted of Endangering the Welfare of a Child, there is no evidence that the incident involved inappropriate sexual contact, therefore, the defendant should not be assessed [*2]the 30 points under that category. Additionally, the defendant argues that he should not be assessed 15 points under category 12 because, through his plea of guilty, he has in fact accepted responsibility for his acts.

The defendant, additionally, opposes any points under category four, arguing that there is insufficient evidence of a continuing course of misconduct. They also oppose the addition of any points under category 13 for unsatisfactory conduct while confined.

The prosecution supported the assessment of the Board of Examiners and argued that 20 points should be added under category four because there is evidence that the course of misconduct was continuous. They also argue that the defendant should be assessed an additional ten points under category 13 for unsatisfactory conduct while confined.

The defendant was previously convicted of Assault in the Third Degree, Issuing a Bad Check, Aggravated Unlicensed Operation in the Third Degree, a second conviction for Assault in the Third Degree and a conviction for Endangering the Welfare of a Child.

The defendant has a history of cocaine addiction. The defendant's custodial adjustment is categorized as poor. He has been in lockdown for 257 days of his confinement. His violations while confined have included Assault on Staff Members, Arson, Refusing Orders and Fighting.

The defendant refused to participate in any treatment programs, consequently he lost all of his good time and will be released upon his maximum expiration date. He will not be supervised by parole.

The defendant will be living in Lyons, New York, Wayne County, which is also the home county of the victim who is now 12 years old.

The Sex Offender Registration Act was intended to provide notice to the community of the risk of sex offenders released to their areas. There is no magic formula for making such determinations. Although the risk assessment instrument allows the court and the Board of Examiners to utilize a tool for a numerical determination of risk, the court must look at all the facts and circumstances in order to make an accurate assessment of the risk that each individual defendant poses.

The law provides that the court shall review the Board's recommendation and has the discretion to set aside a recommendation in arriving at a lower, or higher, classification determination after considering the risk factors and giving the defendant an opportunity to be heard (Corrections Law § 168-n [1] [2]).

Based upon the findings and application of law, it is the determination of this court that the defendant, Paul E. Kelley, be assessed as a Risk Level 3 (High) Offender and thereby be required to register in compliance with the Correction Law of the State of New York.

The court finds that there is sufficient clear and convincing evidence that there was a [*3]continuing course of conduct and, therefore, the defendant should be assessed an additional 20 points under category four. Additionally, the defendant should be assessed ten points under category 13 for unsatisfactory conduct while confined. Through his own conduct and statements, coupled with his refusal to participate in any treatment programs, the court finds that the defendant should be assessed points for not accepting responsibility.

Finally, although the previous conviction for Endangering the Welfare of a Child did not involve any allegations of sexual misconduct, the court finds that the conviction for such charge, in and of itself, increases the risk the defendant presents to the community.

Based upon all of the above, the Risk Assessment Instrument Score should be increased by 30 points. The resulting 160 points clearly places the defendant into the Risk Level 3 (High) Offender category.

Additionally, the defendant should be classified as a Sexually Violent Offender due to his conviction for Sodomy in the First Degree.

It is hereby ordered that the defendant's risk level should be entered into the Sex Offender Registry administered by the Division of Criminal Justice Services.

This Decision shall constitute the Order of the Court.

Dated:June 20, 2005

Rochester, New York

Hon. Frank P. Geraci, Jr.

Acting Supreme Court Justice