A hearing was held on May 8, 2019, pursuant to Correction Law Article 6-C to determine the level of risk to re-offend of defendant/offender Beuford Richardson, and to what extent he poses a threat to public safety.

Defendant/offender was present for the hearing with counsel. Notice of the hearing was provided to him by certified letter, receipt of which was acknowledged on April 4, 2019. Defendant returned the letter and requested to appear and have counsel appointed.

The Court received into evidence over no objection the Risk Assessment Instrument ("RAI") (Exhibit 1), the Case Summary (Exhibit 2) and the Pre-Sentence Investigation ("PSI") (Exhibit 3).

The court makes the following Findings of Fact based on the testimony and evidence it deems credible and accurate.

Defendant/offender pled guilty to one count of course of sexual conduct against a child in [*2]the second degree in full satisfaction of indictment 2016/1074, which charged him with two counts of course of sexual conduct against a child in the second degree. He was sentenced to three years in DOCCS.

Based on statements made by the victims, between April 1, 2014 and April 22, 2015, defendant engaged in sexual intercourse, anal sexual conduct and oral sexual conduct with two sisters, eight and ten years old, for whom he was babysitting. He threatened them so that they would not disclose the abuse.

Although he pled guilty and stated to probation that "I apologize for anything I've done," at reception to DOCCS he denied culpability, saying he took the plea for a lesser sentence.

In 1999, defendant/offender, then 17, was convicted in Florida of lewd lascivious behavior, burglary and sexual assault for having sexually assaulted a 14-year-old victim while she was sleeping. He was sentenced to four years probation. He violated probation for failing to complete sex offender counseling, testing positive for THC and absconding. He is registered as Level II sex offender as a result of this conviction.

In 2008, defendant/offender was convicted of violate sex offender registry requirement — 1st offense and sentenced to five years probation. He violated probation and was sentenced to four months in jail in 2012.

Defendant reports that he first consumed alcohol at age 20 and drank sporadically. He first smoked marijuana at age 14 and used infrequently. At DOCCS reception defendant scored in the "No Problem" range on the Michigan Alcohol Screening Test and "Minimal Need" on the Simple Screening Instrument.

His disciplinary record in prison has been acceptable. Defendant/offender has been participating the Mental Health Prison Based Sex Offender Program at an acceptable level since September 2018. He received no Tier II or Tier III sanctions while incarcerated.

The Board of Examiners scored the Risk Assessment Instrument as follows:

Risk Factor:

2. Sexual contact with victim: sexual intercourse . . . . . . . . . . . . . 25 pts

3. Number of victims: two . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 20 pts

4. Duration of offense conduct with victim:

continuing course of sexual conduct . . . . . . . . . . . . . . . . . . . . . . 20 pts

5. Age of victim: 10 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 pts

8. Age at first sex crime: 20 or less . . . . . . . . . . . . . . . . . . . . . . . . . 10 pts

9. Number and nature of prior crimes: prior violent felony, sex crime or

endangering the welfare of a child or felonies . . . . . . . . . . . . . . . . . 30 pts

11. Drug or alcohol abuse: history of abuse . . . . . . . . . . . . . . . . . . 15 pts

Total Risk Factor Score: 150 points - Level III (High) risk to re-offend.

The People request that the Court adopt the scores assessed by the Board of Examiners.

Defendant objects to the assessment of 30 points under risk factor three, arguing that he only pled guilty to one count of the indictment and therefore he should only be assessed points for one victim. This argument is rejected, as both victims gave statements to police officers describing the sexual abuse by the defendant. Thus, the assessment scored by the Board has been established by clear and convincing evidence.

Defendant also objects to the assessment of points under risk factor 11. Defendant admits to consuming alcohol "sporadically" and using marijuana "infrequently". There is no proof of [*3]use of any other drugs. Furthermore, when screened at DOCCS reception, defendant was scored as "No Problem" on the Michigan Alcohol Screening Test and "Minimal Need" on the Simple Screening Instrument. Therefore, the court declines to assess points under risk factor 11.

With the exception of risk factor 11, all values scored by the Board and adopted by the People have been established by clear and convincing evidence. The result is a Total Risk Factor score of 135 — Level III (High) risk to re-offend.

Defendant/offender argues for a downward departure on the ground that he has earned his GED; is actively participating in sex offender counseling and treatment while incarcerated; is actively participating in a substance abuse program; has taken programs teaching non-violence while incarcerated; and that he was working at the time of the offense.

The People oppose.

A departure from the presumptive risk level is warranted if there is "an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]); see People v Smith, 122 AD3d 1325, 1325-26 [4th Dept 2014]).

"A defendant seeking a downward departure has the initial burden of "(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of re-offense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v Watson, 95 AD3d 978 [2d Dept 2012]; People v Worrell, 113 AD3d 742 [2d Dept 2014]).

In the context of a departure request for successful completion of sex offender treatment, the burden is on the defendant to prove by a preponderance of the evidence that his response to treatment was exceptional (see People v Butler, 129 AD3d 1534, 1534-1535 [4th Dept 2015], lv denied 26 NY3d 904 [2015]; People v Pendleton, 112 AD3d 600, 601 [4th Dept 2013], lv denied 22 NY3d 861 [2014]); (People v Rivera, 144 AD3d 1595, 1596 [4th Dept 2016], lv denied 28 NY3d 915 [2016])

Here, defendant has not met his burden.

His completion of sex offender treatment and expressions of remorse and responsibility (although it is noted that he initially denied guilt), while commendable, are factors already taken into account by the guidelines (People v Davis, 94 NYS3d 422, 424 [4th Dept 2019]). Moreover, nothing indicates that the defendant/offender's response to treatment was "exceptional." No other mitigating factors not taken into account by the Guidelines (such as lack of a criminal record and lack of substance abuse) are present.

Even if they were, the court declines to depart, in a "providential exercise of its discretion" (People v Rivera, 144 AD3d 1595, 1596 [4th Dept 2016]). Defendant/offender's abused two young girls over a long period of time who had been left in his custody. He used threats to silence them; he is a presumptive Level III risk based on his 1999 conviction for sexually assaulting a 14-year-old victim; he was already a Level II offender at the time of the present offense; he denied responsibility upon presenting to DOCCS; and he has a lengthy prison record aside from the sex-related convictions.

Accordingly, defendant/offender's request for a downward departure is denied, resulting in a final Total Risk Factor Score of 135 points and a Level III (High) risk to re-offend.

Defendant/offender meets the definition of a sexually violent offender as set forth in New York State Corrections Law Section 168-a(7). Therefore, the Court makes such designation.

Accordingly, it is hereby

ORDERED that the defendant/offender's risk assessment score is determined to be Level Three (High); defendant/offender's request for a downward departure is denied; defendant/offender is designated a sexually violent offender pursuant to Corrections Law Section 168-a(7), that his name be entered in the Sex Offender Registry administered by the New York State Division of Criminal Justice Services, and that the defendant/offender register in accordance with the New York Corrections Law as a Sex Offender.

This constitutes the DECISION and ORDER of the Court.