One of the most difficult issues persons convicted of sex crimes have is how to participate in sex offender programs required for release or favorable classification without admitting conduct that was denied at trial and may be denied on re-trail, if an appeal is successful. The Fourth Department, in People v Kearns (2009 NY Slip Op 09800 [4th Dept 12/30/09]), recognized this dilemma and held it was wrong for a inmate to be penalized in his SORA determination because of his refusal to participate in such a program while his appeal was pending:
With respect to risk factor 12, it is undisputed that defendant refused to participate in sex offender treatment while he was incarcerated, but he contends that his refusal was based on the advice of defense counsel to refrain from participation. According to defendant, his appeal from the judgment of conviction was pending when the treatment was offered and, in the event of reversal on appeal and a subsequent new trial on all counts of the indictment, his participation in treatment would have required him to make admissions against his interest, in violation of his Fifth Amendment privilege against self-incrimination. We note in addition that the risk assessment guidelines do not contain exceptions with respect to a defendant’s reasons for refusing to participate in treatment (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 16 [2006]).
We thus agree with defendant that the court improvidently exercised its discretion in determining that defendant was not entitled to a downward departure from his presumptive risk level. We therefore substitute our own discretion, ” even in the absence of an abuse [of discretion],’ ” and we modify the order by determining that defendant is a level two risk (People v Smith, 30 AD3d 1070, 1071, quoting Matter of Von Bulow, 63 NY2d 221, 224; see People v Brewer, 63 AD3d 1604). In our view, “there is clear and convincing evidence of special circumstances to warrant a downward departure from the presumptive risk level” (Brewer, 63 AD3d at 1605; see Smith, 30 AD3d at 1071). The professionals who evaluated defendant all concluded that defendant was not a sexual predator, that he did not have abnormal sexual tendencies, and that he was not a threat to himself or others. In addition, we agree with defendant that he was faced with a “Hobson’s choice” when deciding whether to participate in treatment. We thus conclude on the record before us “that there are . . . mitigating factor[s] of a kind or to a degree, not otherwise adequately taken into account by the guidelines” (People v Santiago, 20 AD3d 885, 886 [internal quotation marks omitted]; see Smith, 30 AD3d at 1071; Risk Assessment Guidelines and Commentary, at 4).
