On appeal, the defendant argues that he should have been assessed only 70 points by the Board because the provision in the Guidelines permitting consideration of his juvenile delinquency adjudication violates Family Court Act § 381.2. Furthermore, the defendant argues that the People failed to prove, by clear and convincing evidence, that there should have been an upward departure from the presumptive risk level.
The Guidelines provide that if a sex offender committed a sex offense that subsequently resulted in an adjudication or conviction for a sex crimes at age 20 or less, that sex offender is to be scored 10 points under risk factor 8. On this appeal, of the 80 points assessed against the defendant, he challenges only the 10 points assessed under risk factor 8 (“Age at first act of sexual misconduct 20 or less”). Specifically, the defendant asserts that he was improperly assessed 10 points under risk factor 8 because Family Court Act § 381.2 prohibits such an assessment. The defendant concedes that this contention is unpreserved for appellate review because he did not raise that argument before the Supreme Court. However, we reach this contention in the exercise of our interest of justice jurisdiction to address the perceived conflict between the Guidelines and the Family Court Act.
First, the court considers the purpose of juvenile delinquency proceedings. Its intent is to empower Family Court to intervene and positively impact the lives of troubled young people while protecting the public as held in Matter of Robert J. Pursuant to Family Court Act § 301.1, the Family Court is required to “consider the needs and best interests of the respondent as well as the need for protection of the community.”
Family Court Act § 381.2, entitled “Use of records in other courts” provides:
“1. Neither the fact that a person was before the family court under this article for a hearing nor any confession, admission or statement made by him to the court or to any officer thereof in any stage of the proceeding is admissible as evidence against him or his interests in any other court.
2. Notwithstanding the provisions of subdivision one, another court, in imposing sentence upon an adult after conviction may receive and consider the records and information on file with the family court, unless such records and information have been sealed pursuant to section 375.1.”
The Family Court Act § 380.1(1) states that no adjudication under this article may be denominated a conviction and no person adjudicated a juvenile delinquent shall be denominated a criminal by reason of such adjudication as in Holyoke Mut. Ins. Co. v. Jason B.
The court notes that the Legislature has sought to protect young persons who have violated the criminal statutes of this State from acquiring the stigma that accompanies a criminal conviction akin to People v. Gray and Green v. Montgomery. Indeed, as pertinent here, the term “juvenile delinquent” is defined as a child over the age of 7 and less than 16 who has committed a crime but is not criminally responsible for such conduct by reason of infancy.
The Family Court Act § 381.2 is clear. It provides that neither the fact that a person was before the Family Court in a juvenile delinquency proceeding for a hearing, nor any confession, admission, or statement made by such a person to the Family Court, or to any officer thereof in any stage of that proceeding, is admissible in any other court.
The court agrees with the defendant that so much of the commentary to the Guidelines as permits the consideration of juvenile delinquency adjudications in SORA proceedings conflicts with Family Court Act § 381.2. The sole statutory exception to the confidentiality provisions of Family Court Act § 381.2 permits consideration of records and information relating to a juvenile delinquency adjudication and a weapon by a court in imposing sentence upon an adult.
It should be noted that a SORA proceeding is civil in nature as held in People v. Mingo and a risk level determination is not a sentence. Thus, the statutory exception is inapplicable. Consequently, the court holds that the Board, which is merely an advisory panel, exceeded its authority by adopting that portion of the Guidelines which includes juvenile delinquency adjudications in its definition of crimes for the purpose of determining a sex offender’s criminal history. Likewise, the Supreme Court erred in considering the defendant’s juvenile delinquency adjudication in determining the defendant’s appropriate risk level designation under SORA. The court holds that the Board was without the power to adopt a guideline which contravenes the clear legislative pronouncement set forth in Family Court Act § 381.2. If the mere fact that an individual was adjudicated a juvenile delinquent is to be considered in assessing points against an offender pursuant to SORA, such consideration must be specifically authorized by the Legislature, not by the courts or the Board. Therefore, the defendant should not have been assessed 10 points under risk factor 8, which results in a total risk factor score of 70 points, making him a presumptive level one sex offender.
With respect to upward departures, the threshold condition triggering the court’s exercise of discretion is twofold: “(1) as a matter of law, the cited aggravating factor must tend to establish a higher likelihood of reoffense or danger to the community and be of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines, and (2) the People must prove the facts in support of the aggravating factor by clear and convincing evidence” as held in People v. Wyatt.
If the People meet these two preconditions, the SORA court may, in its discretion, upwardly depart. By contrast, if the People do not meet those preconditions, the SORA court has no authority to exercise its discretion to depart upward because SORA requires the ultimate risk designation to be supported by clear and convincing evidence.
Thus, the Supreme Court improperly classified the defendant as a level three sex offender. Accordingly, the order is reversed, on the law, and the defendant is designated a level one sex offender and a violent sexually offender.
The court reverses the decision, on the law, without costs or disbursements, and designates the defendant a level one sex offender and a sexually violent offender.