After a SORA hearing held on August 5, 2008, defendant is adjudicated to be a Level Three Sex Offender. See stenographic minutes on file.

The defendant was charged under this indictment with Rape in the First Degree stemming from an incident that occurred on February 18, 1976. He was convicted and sentenced to an indeterminate period of incarceration of from 8½ to 25 years. In 1996, the defendant was classified as a level three sex offender. Thereafter, as a result of the Stipulation of Settlement in Doe v Pataki (3 F Supp 456 [Southern District 1998]), he was afforded a [*2]new hearing on his sex offender status, utilizing a new risk assessment instrument. In December 2004, a Sex Offender Registration Act (hereinafter SORA) hearing was conducted before this Court, which designated the defendant a level three sex offender. The defendant appealed from this adjudication and on November 13, 2007, the Second Department reversed it and remitted the matter for a new hearing and determination (See, People v Best, 45 AD3d 657 [2d Dept 2007]). The basis for the reversal was the untimely notice of the new risk assessment instrument, which the defendant did not receive until the day of the hearing. On April 10, 2008, a new SORA hearing was scheduled to begin in this Part. Prior to its commencement, however, the People moved for an order allowing the Court to consider defendant's New Jersey conviction, which occurred after the offense at bar, and to include another subsequent conviction in the Court's SORA calculations. The defendant opposed the motion and the Court decided that the People's application to include the New Jersey conviction for the purposes of SORA calculations was denied to the extent that "the New Jersey conviction [would] not be included in the risk assessment calculations as a prior crime" (See, People v Best, Sup Ct, Queens County, July 1, 2008, Kohm, J.,indictment No. 77-216). However, the Court found that the New Jersey conviction, as well as a 2006 Sexual Abuse conviction, could be considered by the court in evaluating whether there should be an upward departure from the risk assessment instrument (id.).

On August 5, 2008, a risk level assessment hearing was held in this Part ^[FN1]. At this hearing, the People introduced a copy of the defendant's New Jersey conviction for aggravated assault and battery while carrying a concealed weapon. They also provided the Court with a copy of the defendant's 2006 conviction in New York State for Sexual Abuse in the Third Degree stemming from two separate offenses, Forcible Touching and Sexual Abuse in the Third Degree, involving two different women. The People's position is that both convictions, particularly the sexual offenses committed after the defendant was released from incarceration on the instant matter, demonstrate the defendant's "likelihood to re-offend" (Hearing minutes, p5), and provide ample basis for an upward departure from the Risk Assessment Instrument.

As the Court pointed out in its decision of July 1, 2008, the 40 points assessed against the defendant on the Risk Assessment Instrument for the New Jersey conviction as a prior crime could not [*3]lawfully be assessed against him on that ground. Accordingly, 40 points had to be deducted from the instrument, so that the Total Risk Factor Score for the defendant was not 135, but 95, and the Presumptive Risk Level was 2, not 3. However, the Presumptive Risk Level is not necessarily binding on the Court in making its adjudication. The Risk Assessment Instrument itself allows the Court to determine whether there are any factors that would warrant "a departure from the presumptive risk level".

In the Court's prior decision (id.), the Court noted that the SORA Risk Assessment Guidelines and Commentary provide that a defendant's concurrent or subsequent criminal history "may be the basis for an upward departure if it provides reason to believe that the offender poses an increased risk to public safety". The Court cited the holding in People v Barad, 50 AD3d 988 [2d Dept 2008], in which the Second Department held that a court "may depart from the presumptive risk level determined by the risk assessment instrument based upon the facts in the record" and that "a departure from the presumptive risk level is warranted where there exists aggravating or mitigating facts of a kind or to a degree not otherwise taken into account by the guidelines." The question, then is whether the defendant's two convictions, one for assault in New Jersey and one for Sexual Abuse in the Third Degree committed after the defendant's release from incarceration on the instant matter, are an appropriate basis for an upward departure.

In the opinion of the Court, the defendant's two convictions, particularly the one involving the sexual abuse of two different women, are clearly relevant to the court's assessment of the defendant's "risk to public safety." These convictions are not "otherwise taken into account by the guidelines," and thus may be considered in the context of an upward departure (See, People v Miller, 48 AD3d 774 [2d Dept 2008], and People v Mudd, 43 AD2d 1128 [2d Dept 2007], appeal denied 9 NY3d 817 [2008]. Although defendant's subsequent conviction in New Jersey cannot be considered a "prior crime", this does not mean that the conviction should not be disregarded. The same is true for the 2006 conviction for Sexual Abuse in the Third Degree. As the Court has already pointed out, the SORA guidelines specifically provide that although concurrent or subsequent criminal history is not covered under Factor 9 of the guidelines, "it may be the basis for an upward departure if it provides reason to believe that the offender possesses an increased risk to public safety" (see, (People v Barad, 2008 NY App Div LEXIS 3483 [2d Dept 2008]),where the Second Department held that a court "may depart from the presumptive risk level determined by the risk assessment instrument based upon the facts in the record" and that "a departure from the [*4]presumptive risk level is warranted where there exists aggravating or mitigating facts of a kind or to a degree not otherwise taken into account by the guidelines"; SORA Risk Assessment Guidelines and Commentary at 4 [1997]). The Court finds that the two subsequent convictions warrant a departure from the presumptive risk level calculated on the Risk Assessment Instrument in that they demonstrate that the defendant poses an increased risk to public safety and that he is likely to commit another offense in the future.

Based upon the foregoing, the defendant is adjudicated to be a Level Three Offender.

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ROBERT CHARLES KOHM, J.S.C.