Defendant stands convicted of Criminal Sexual Act in the First Degree in violation of Penal Law §130.50. On May 26, 2005 he was sentenced to a determinate period of incarceration of eight years to be followed by five years of post-release supervision. Pursuant to Correction [*2]Law §168-n, a "Risk Level Assessment" hearing was held before this Court on February 2, 2012 to determine the defendant's appropriate level of community notification as a convicted sex offender.

In making this determination the Court has considered the Risk Assessment Instrument and Case Summary prepared by the Board of Examiners of Sex Offenders (the "Board") and five court exhibits which contain, among other things, the defendant's sex offender treatment record while incarcerated. The Court has also taken into account the arguments of both the People and defense counsel.

With respect to the defendant's risk level, initially the Court refers to the Risk Assessment Instrument. That document has assigned the defendant a numerical score of eighty which would require a presumptive Risk Level Two (moderate risk to re-offend) designation. The Board and the People, however, have made application for an upward departure and request the defendant be designated a Risk Level Three (high risk to re-offend) offender. Alternatively the Board and the People seek application of an override based on their belief that the defendant is a diagnosed pedophile and therefore, "there has been a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases ability to control impulsive sexual behavior" (see Sex Offender Registration Act, The Risk Assessment Guidelines and Commentary, [2006], page 19)(Guidelines). Finally, the People request that fifteen points be added to the Risk Assessment Instrument under risk factor eleven (Drug or Alcohol abuse - History of abuse). The imposition of those fifteen points would raise the defendant's score to ninety-five, still within the range for a presumptive Risk Level Two designation.

The defendant objects to each of the People's applications. Briefly, the defendant maintains that he was appropriately scored eighty points on the Risk Assessment Instrument and there is no basis for an upward departure. The defendant further argues that there has not been a sufficient showing that the defendant is a properly diagnosed pedophile and, therefore, the application of the aforementioned override is inappropriate. Finally, the defendant contends that the People have failed to present clear and convincing evidence to support both the request for an upward departure and the imposition of points under risk factor eleven on the Risk Assessment Instrument.

At a hearing where the Board, People or defendant disagree as to the offender's adjudication, the People bear the burden of proving the facts supporting the determination sought by clear and convincing evidence (see People v. Hernandez, 7 Misc 3d 151 [2005]). Such a hearing is analogous to a sentencing determination in that the court making the sex offender risk assessment determination has latitude in the type and nature of evidence it may consider and is not bound by the formal rules of evidence (People v. Victor R., 186 Misc 2d 28 [2000]). In making a determination the court shall consider and review any victim's statement and any other relevant materials and evidence submitted by the sex offender and the People (see Id.). Finally, an upward or downward departure from the presumptive risk level is warranted when, "after consideration of the indicated factors ... there exists an aggravating or mitigating factor of a kind, [*3]or to a degree, not otherwise adequately taken into account by the risk assessment guidelines (see Matter of O'Brien v. State of New York Division of Probation & Correctional Services, 263 AD2d 804 [1999]).

The stated purpose for the development of the Sex Offender Guidelines is the Board, with the assistance of a group of experts with experience in dealing with sex offenders, "would bring academic knowledge and practical acumen to the difficult task of predicting whether a person convicted of a sex crime is likely to re-offend" (see Guidelines, page 1). The responsibility for the final assessment of factor values and the overall determination of a defendant's sex offender level lies with the court, however, and while recommendations of factor assessments by the Board may be useful, a court is not constrained by them (People v. Jusino, 11 Misc 3d 470 [Sup Ct., New York County, 2005]; citing People v. Dorato, 291 AD2d 580 [2002]).

As to the request by the People and the Board for the Court to consider an override based on the defendant's purported diagnosis of pedophilia, that application must be denied. The Guidelines allow for such an override when 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 (see Guidelines, page 4). Examples of a clinical assessment that would support an override are pedophilia and sexual sadism (see Guidelines, p.19).

Here, the People and the Board rely on the Psychosexual Evaluation done of the defendant while he was incarcerated (see Court Exhibit IV). In that report, at page twelve, the preparer states, "Mr. Compasso meets the DSM IV diagnostic criteria for Pedophilia, Sexually Attracted To Females..." That evaluation was dated March 10, 2009 and completed by "Marilyn Smith, SWII." Although there is no indication in the full record before the Court as to the definition of "SWII", there are other entries which reveal that Ms. Smith was employed by the New York State Department of Corrections as a Licensed Master Social Worker II (LMSW II).

The defendant maintains that the short note indicating that he "meets the DSM IV diagnostic criteria for Pedophilia, Sexually Attracted To Females" does not constitute a diagnosis, nor is it a clinical assessment necessary for application of the override. Alternatively, defendant argues that Ms. Smith is not qualified to make such an assessment.

According to the New York State Education Law §7701[1],

"(a) The practice of licensed master social work shall mean the professional application of social work theory, principles, and the methods to prevent, assess, evaluate, formulate and implement a plan of action based on client needs and strengths, and intervene to address mental, social emotional, behavioral, developmental and addictive disorders, conditions and disabilities, and of the psychosocial aspects of illness and injury experienced by individuals, couples, families, groups, communities, organizations, and society."

(b) Licensed master social workers engage in the administration of tests and measures of [*4]psychosocial functioning, social work advocacy, case management, counseling, consultation, research, administration and management, and teaching."

That definition should be compared to that of the practice of clinical social work which states, in relevant part,

"The practice of clinical social work encompasses the scope of practice of licensed master social work and, in addition, includes the diagnosis of mental, emotional, behavioral, addictive and developmental disorders and disabilities and of the psychosocial aspects of illness, injury, disability and impairment undertaken within the psychosocial framework ..." (see Education Law §7701[2](a)(Emphasis supplied).

The definition continues at subsection (b),

"Diagnosis in the context of licensed clinical social work practice is the process of distinguishing, beyond general social work assessment, between similar mental, emotional, behavioral, developmental and addictive disorders, impairments and disabilities within a psychocsocial framework on the basis of their similar and unique characteristics consistent with accepted classification systems."

Assuming arguendo that the note in the Psychosexual Evaluation constitutes a diagnosis or clinical assessment, according to the New York State Education Law §7701 it would appear that a Licensed Master Social Worker like Ms. Smith, compared to a Clinical Social Worker, is not qualified to make such a diagnosis or clinical assessment necessary for implementation of the override sought. Additionally, while Licensed Master Social Workers may "practice licensed clinical social work in facility settings or other supervised settings approved by the department under supervision in accordance with the commissioner's regulations, " there is no evidence that Ms. Smith was working under the direction of a psychiatrist, psychologist or licensed clinical social worker when she prepared the Psychosexual Evaluation noting the defendant's diagnostic criteria (see Education Law §7701[1](d); People v. R.R., 12 Misc 3d 161 [Sup. Ct, New York County, 2005]).

Accordingly, the Court finds that the People have failed to present clear and convincing evidence that the defendant has been properly assessed as having a "psychological, physical, or organic abnormality that decreases ability to control impulsive sexual behavior" (see Guidelines, page 4).

As to the application for an upward departure, that request is similarly denied. The People argue that Ms. Smith's note in the Psychosexual Evaluation that defendant meets the diagnostic criteria for Pedophilia represents an aggravating factor not otherwise taken into account by the risk assessment guidelines. The People also rely on certain alleged admissions by the defendant, as noted in the same evaluation, that he engaged the services of prostitutes while [*5]in the Dominican Republic and that "some of them could have been underage" (see Court Exhibit IV, page 9) to support the application for an upward departure.

It is noted that the People must present clear and convincing evidence to support their application (see Guidelines, page 7; People v. Wyatt, 89 AD3d 112 [2011]). In this case, reference to the defendant's apparent admission that he employed prostitutes who "could have been underage" is speculative and does not rise to the level of clear and convincing evidence. With respect to the argument that the defendant meets the diagnostic criteria for Pedophilia, as noted above, that determination was made by a social worker unqualified to make such a diagnosis or clinical assessment. Therefore, that assessment similarly does not constitute clear and convincing evidence sufficient to support an upward departure.

Finally, the People's application to add fifteen points to the Risk Assessment Instrument under risk factor eleven is granted. The People maintain that the imposition of points is appropriate based on the defendant's admission to using marijuana daily from the age of thirty-eight to forty-three (see Court Exhibit III [Defendant's Institutional Admission Form, page 16]).

The defendant admitted to his intake counselor that he mixed the marijuana with tobacco and smoked the mixture. This drug abuse occurred within nine months of the defendant's arrest.

Although the defendant had abstained from the use of alcohol for almost twenty years prior to his arrest, the daily use of marijuana represents a history of drug abuse sufficient to support the imposition of fifteen points under the noted risk factor. Accordingly, the defendant should have been properly scored ninety-five points on the Risk Assessment Instrument.

Based on the sum of the foregoing the defendant, Brian Compasso, is hereby designated a Risk Level Two sexually violent offender.

This shall constitute the decision and order of the Court.

Dated: February 14, 2012

______________________

Barbara Kahn, J,C,C,