The convictee pled guilty on December 9, 1993, to three counts of Rape in the Second Degree in violation of Penal Law §130.30, a Class D Felony.

A hearing having been held on January 23, 2007, to determine, pursuant to Article 6-C of the Correction Law, the duration of registration, level of notification and whether or not the defendant is qualified as a sexual predator, sexually violent offender or predicate sex offender and the District Attorney, Convictee's counsel and the convictee each having the opportunity to be heard and the Convictee having disputed the District Attorney's and the Board of Examiner's recommendation that there be a departure "upward" to a Level "3" as well as the District Attorney's request to assign "10" points under Risk Factor "I-1" (use of violence - used forcible compulsion) asserting that the proof establishes that there were threats, expressed or implied, justifying a ten point allocation which would result in a total Risk Factor score of "110" points resulting in a presumptive level of "3".

The Convictee opposes the assignment of any points for Risk Factor I, as no use of violence was proven. Therefore, the total Risk Factor score should remain at "100" points resulting in a presumptive Risk level of "2". In addition, there should be no departure arguing that the crimes were committed when the Convictee was 51 years of age and the board did not consider the convictee's present age (68) and health condition to wit: he suffers from bad knees, [*2]cardio vascular disease, and is under medications when considering his risk to re-offend.

The Court, based upon the pre-sentence report, the victim impact statement, the Sex Offender Risk Assessment Instrument, Case Summary, the sentencing minutes, other materials relevant to the determination, the testimony and exhibits received makes the following Findings of Fact and Conclusions of Law:

1. That the convictee, Richard E. Aikey, Sr., born May 22, 1939, engaged in sexual intercourse with three females (each being his stepdaughter) who were less that fourteen years old at the time and was convicted upon a plea of guilty to three counts of Rape in the Second Degree, a Class D Felony (Penal Law §130.30) and one count of Endangering the Welfare of a Child, a Class A Misdemeanor [Penal Law §260.10(1)] on December 9, 1993 and was sentenced on January 24, 1994 to serve a maximum of seven (7) years and a minimum of two and one-third (2 ) years in state prison to be served consecutively for an aggregate total of a minimum of seven (7) years and a maximum of twenty (20) years, together with a sentence of one (1) year for the Endangering the Welfare of a Child count, the later to be served concurrently with the felony sentences.

2. That Court notes that in completing the Risk Assessment Instrument, points cannot be assessed for a factor unless there is clear and convincing evidence of the existence of that factor. This evidence can be derived from the sex offender's admissions, the victims' statements, the evaluative reports of the supervising probation, parole officer or corrections counselor or from any other reliable source [see People v. Burden, 6 Misc 3d 1033(A)]. Notably, the Board is not limited to the crime of conviction, but considers the foregoing in determining the offender's risk level.

3. That the convictee is a certified sex offender as defined in Correction Law §168-a(1).

4. That the District Attorney argues that Risk Factor I-1 (use of violence -used forcible compulsion) should be "10" points as the proof presented shows that for three years the victims and their younger brother were threatened or subjected to the actual use of force, to wit: the Convictee would brandish a gun or hit the brother or he would hit some of the victims, or threaten one of the victims to never tell anyone about his sexual acts and one of the victims stated, "when Dad tells me to do something I do it because he scares me." The Convictee's conduct with the stepson clearly heightened the victims' fears of the Convictee. In addition, the Convictee's statements to Investigator Christensen (Exhibits 1 and A) corroborated, in part, sexual contact, the gun incident with the stepson and that Convictee got violent on occasion. Also, persuasive is that the victims' mother knew the Convictee was having sex with each of her daughters for a year and a half, she saw pictures of the victims having oral sex with Convictee and destroyed the pictures when she knew there might be trouble (Exhibit 5). She also said that she went along with her husband because she did not want to lose all of the material possessions that she had worked for. (See Case Summary). In short, the mother instead of protecting her daughters "enabled" the Convictee which heightened their fear and sense of helplessness.

The sex offender guidelines point out that when dealing with Factor I "the point ... is not what the defendants would have done, but rather what the victim observing their conduct, feared they ... might do if she did not comply with their demands." People v. Coleman, 42 NY2d 500, 505. In addition, discrepancies in age, size, or strength are relevant factors in determining whether there was such compulsion. Here the defendant was a 51 year old adult male and the victims and their brother ranged in age from 12 to 16 years old. It is this Court's opinion that the [*3]People have established by clear and convincing evidence that "10" points should be assigned to Risk Factor I-1 making the total risk factor score of "110"points with a risk level of "3".

In addition, there is clear and convincing evidence that there is reason for departure upward even if "0" points were assigned to Risk Factor I-1 in that there was a clear course of uncharged sexual misconduct perpetrated over a three year period by the Convictee against his three step daughters even though he only plead guilty to one count of Rape in the Third Degree for each child. He was assessed "20" points under Risk Factor I-4 for a continuous course of sexual misconduct with the victims. However, this is not duplicative given his egregious conduct with each victim including sodomy, rape, photographing his victims, his implied use of force resulting in each one of the three victims and their brother being subjected to the Convictee's base acts detailing a pattern of abuse of each victim over a three year period (See People v. Allen, 24 AD3d 979) which demonstrates the requisite aggravating factors warranting an upward departure. People v. Hammonds, 27 AD3d 441.

In addition, unlike Risk Factor I-7 which addresses the relationship with the victim if the perpetrator is a stranger or established for purpose of victimizing ... the assessment instrument does not have a stated Risk Factor which deals, as in the case at bar, with a parent figure who is a caretaker with unlimited access to and power over a child, in this case, four children, using his position to victimize each child repeatedly over a three year period. Especially, when the proof established that the children's mother knew of the abuse and condoned it. This situation is an aggravating factor not fully taken into account by the Risk Assessment Instrument, also warranting an upward departure. People v. Ferrer, 2006 WL 3742170, 1st Dept, 12/06; People v. Forney, 28 AD3rd 446.

5. Except for Risk Factor I-1, neither the Convictee or the People disagree with the points recommended by the Board and the Court finds, by clear and convincing evidence, Risk Factor scores for the following Risk Factors: I-2 (sexual contact with victim, sexual/deviate sexual intercourse), "25" points; I-3 (number of victims - 3), "30" points; I-4 (duration of offense conduct with the victim -continuing course of sexual misconduct), "20" points; I-5 (age of victim - 11through 16), "20" points; and II-9 (number and nature of prior crimes - prior history/no sex crimes or felonies), "5" points. All other Risk Factors were assigned "0" points and the Court so finds.

6. That neither the District Attorney or Convictee oppose that the Convictee is not a Sexual Violent Offender, Sexual Predator or a Predicate Sex Offender and the Court finds no such designation.

7. There is clear and convincing evidence that the Convictee is presumed to be a Level "3" Offender based on a Risk Factor score of "110" points; in addition, the Court has previously found by clear and convincing evidence the presence of aggravating factors which in their own right support an "upward" departure to a Level "3" offender even if no points were assigned to Risk Factor I-1.

8. Therefore, after application of the risk assessment criteria of Correction Law §168(l)(5) the Court concludes that the risk of a repeat offense by the Convictee sex offender is "high".

NOW, based upon the foregoing it is determined and ordered that the convictee's risk level shall be "3 (high)", and it is further determined that the defendant is not either a Sexually Violent Offender, Predicate Sex Offender or Sexual Predator, and it is further [*4]

ORDERED, that the Clerk shall forward a copy of this order to the Sex Offender Registry Unit at the New York State Division of Criminal Justice, the District Attorney, convictee's counsel and the convictee.

The foregoing constitutes the risk level assessment, designation (Article 6-C of the New York State Correction Law), determination and order of the Court.

SO ORDERED.

Dated: January _____, 2007.

_________________________

W. Patrick Falvey

Yates County Judge