ALBANY – A sex offender was unfairly placed in a higher-than-warranted classification on the state’s sex offender registry based on inconclusive findings about whether he accepted responsibility for his crimes, a divided state appeals court has held.

The Appellate Division, Third Department, panel held 3-2 that James Munafo was improperly assessed 10 points during his risk-level evaluation upon the finding that he had not taken responsibility for the actions that led to his 2003 convictions in Massachusetts for rape and indecent assault against five girls younger than 14.

The 10 points were enough to push Munafo’s classification into the Level III category, which deems offenders as sexually violent and most at risk of re-offending. It requires the strictest reporting and monitoring of offenders in any of the registry’s three categories.

The majority ordered that the 10 points be deducted from Munafo’s risk-assessment total, reducing his overall classification to Level II, and that the matter be remanded to Madison County Court for a revised registry judgment.

The panel ruled in People v. Munafo, 516432, that Madison County Court Judge Dennis McDermott (See Profile) based his assessments on a Board of Examiners of Sex Offenders’ analysis, which in turn was largely based on reports made during Munafo’s incarceration in Massachusetts from 2003 to 2007.

An early report referred to Munafo’s “distortions” and rationalizations about his crimes, and Munafo failed at first to complete a sex offender treatment program.

But the court said McDermott should have given greater weight to a June 2009 letter from psychologist Joseph Plaud, which indicated Munafo had taken part in later sex offender treatment that he would ultimately complete. Plaud also said Munafo was prepared to live safely in the community and should be in the “lowest-risk cohort” to commit further sex crimes against children.

The Board of Examiners of Sex Offenders did not assess the 10 points against Munafo for risk factor 12, which evaluates an offender’s acceptance of their crimes. But McDermott added the 10 points when he made his final judgment on the classification in December 2012.

Justice Elizabeth Garry (See Profile) wrote for the Third Department that the psychologist’s generally positive findings about Munafo’s progress in treatment were “wholly unrefuted” in a hearing over Munafo’s classification.

“In light of this unchallenged expert opinion, we cannot find that the requisite standard of clear and convincing evidence was met” in Munafo’s classification, she wrote.

Justices William McCarthy (See Profile) and Eugene Devine (See Profile) joined in the majority.

Justice Michael Lynch (See Profile) wrote for the dissenters that Munafo’s completion of sex offender treatment “does not necessarily mean that he accepted responsibility for his actions.”

“Tellingly absent from the unsworn, single-page letter of defendant’s treating psychologist is any reference to defendant’s acceptance of responsibility,” Lynch wrote. “Considering the history of defendant’s failed treatment, this omission calls into question the reliability of the report.”

Lynch said he would have maintained Munafo’s standing as a Level III sexually violent offender.

Justice Leslie Stein (See Profile) joined in the dissent.

New York officials became involved in the Munafo matter when he sought to move to New York following his release from a Massachusetts prison. Offenders convicted in other states or countries of sex-related crimes must be listed in New York’s registry if they seek to live in the state.

John Cirando, partner at D.J. & J.A. Cirando in Syracuse, represented Munafo. He said the case was unusual because of the inconsistency of the psychologist’s reports.

“Usually, the expert is a lot clearer in their phraseology,” he said.

Cirando said he argued before the Third Department that one of the conditions of completing a sex offender treatment program is that an offender accept responsibility for their actions. He said the Board of Examiners of Sex Offenders recognized that fact when it did not assess Munafo any points for risk factor 12.

Assistant Madison County District Attorney Elizabeth Healy argued for her office.