State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 21, 2015 518572 

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THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

KENNETH J. FILKINS II,

Appellant.

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Calendar Date: March 24, 2015

Before: Peters, P.J., Egan Jr., Rose and Lynch, JJ.

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G. Scott Walling, Schenectady, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Sara E.

Fisher of counsel), for respondent.

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Egan Jr., J.

Appeal from an order of the County Court of Washington

County (McKeighan, J.), entered August 22, 2013, which classified

defendant as a risk level II sex offender pursuant to the Sex

Offender Registration Act.

Defendant pleaded guilty to a superior court information

charging him with one count of attempted rape in the second

degree and thereafter was sentenced to 90 days in the Washington

County jail and 10 years of probation. The underlying charge

stemmed from an incident wherein defendant, then 19 years old,

engaged in sexual intercourse with the 14-year-old victim. In

anticipation of his release, the Board of Examiners of Sex

Offenders prepared a risk assessment instrument that

presumptively classified defendant as a risk level II sex
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offender (95 points) and recommended against a departure. The

People adopted this recommendation. County Court thereafter

denied defendant's request for a downward departure and

classified him as a risk level II sex offender.

Upon appeal, this Court determined, among other things,

that 20 points improperly were assessed for risk factor 4 and

remitted this matter in order for County Court to make the

requisite findings of fact and conclusions of law relative to

defendant's request for a downward departure (107 AD3d 1069

[2013]). Upon remittal, the parties submitted written arguments

in lieu of a hearing, and such arguments were – on consent –

limited to the record as it then existed. After considering the

parties' written submissions, County Court issued an order

classifying defendant as a risk level II sex offender (75 points)

and denying his request for a downward departure. Defendant now

appeals.

Preliminarily, to the extent that defendant faults County

Court for failing to adhere to the three-step analysis outlined

by the Court of Appeals in People v Gillotti (23 NY3d 841, 861

[2014]) in determining whether a departure from the presumptive

risk level was warranted, we need note only that Gillotti was not

decided until nearly 10 months after County Court issued the

order from which this appeal is taken. In any event, applying

Gillotti to the instant appeal, the record reflects that

defendant has failed to meet his threshold burden of identifying

the existence of a mitigating factor "of a kind or to a degree

[that is] not adequately taken into account by the guidelines"

(id. at 861; see People v Kotzen, 100 AD3d 1162, 1163 [2012], lv

denied 20 NY3d 860 [2013]) and, therefore, County Court did not

abuse its discretion in denying defendant's request for a

downward departure. 

A review of the risk assessment instrument reveals that

defendant was not assessed any points under risk factor 12

(acceptance of responsibility), which, contrary to defendant's

assertion, indeed is an adequate reflection of his stated remorse

and cooperation. With respect to the 10 points assessed under

risk factor 8 (age at first act of sexual misconduct), defendant

notes that he was only a few days shy of his 20th birthday at the
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time of the underlying offense and contends that, had he been 20

years old at the time thereof, he would have been presumptively

classified as a risk level I sex offender. Defendant is

incorrect. As we noted when this matter was last before us,

points are assessed under risk factor 8 "when offenses are

committed by those 20 [years old] or less" (107 AD3d at 1070

[internal quotation marks and citation omitted]; see People v

Robertson, 101 AD3d 1671, 1672 [2012]). Hence, in order to avoid

an assessment of points under risk factor 8, defendant would have

to have been more than 20 years old at the time of his first

offense, which he clearly was not. Accordingly, the assessment

of points under this risk factor was entirely proper, and

defendant's age at the time of the offense did not constitute a

mitigating factor. Finally, to the extent that defendant's age

disparity argument has been preserved for our review, we find it

to be lacking in merit – particularly in view of the victim's

statement that she was not a willing participant in the sexual

contact at issue (compare People v Goossens, 75 AD3d 1171, 1172

[2010]; People v Brewer, 63 AD3d 1604, 1605 [2009]).

Peters, P.J., Rose and Lynch, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court