Opinion
2008-1763 W C.
Decided October 13, 2009.
Appeal from an order of the City Court of Mount Vernon, Westchester County (Adam Seiden, J.), entered September 4, 2008. The order, following a hearing, designated defendant a level three sex offender pursuant to the Sex Offender Registration Act.
ORDERED that the order is modified by providing that defendant is designated a level one sex offender pursuant to the Sex Offender Registration Act; as so modified, the order is affirmed without costs.
PRESENT: MOLIA, J.P., NICOLAI and TANENBAUM, JJ.
Defendant pleaded guilty to a charge of sexual misconduct (Penal Law § 130.20) which arose from an incident that occurred on August 8, 2005 involving an underage female. Defendant was sentenced on September 18, 2008 to six years' probation.
At the Sex Offender Registration Act (SORA) hearing ( see Correction Law § 168-n), the People introduced evidence that defendant had been convicted of a charge of sexual misconduct on June 16, 2008 involving the same victim. Defense counsel established that the latter offense had occurred in Queens County between October 31, 2006 and July 7, 2007, which was after the underlying offense in this proceeding had been committed, and argued that the conviction in Queens County could not be the basis for assessing points against defendant for having a prior misdemeanor conviction under factors 9 and 10 of the risk assessment instrument. Nevertheless, the court assessed defendant 30 points for having a prior misdemeanor sex crime and 10 points for the recency of the prior offense. In addition, defendant was assessed 10 points for having an inappropriate living situation, based on the People's assertion that defendant lived two blocks from a park. Defense counsel argued that defendant's living situation was not inappropriate. The total score assessed by the court in the risk assessment instrument was 115. As a result, the District Court classified defendant as a level three sex offender.
On appeal, defendant contends that the conviction in Queens County on the charge of sexual misconduct was subsequent to the commission of the underlying offense in this action and, thus, cannot be considered as a factor under the criminal history factors numbered 9 and 10 of the risk assessment instrument. The People concede this issue on appeal. Defendant further contends that the City Court erroneously assessed 10 points against him for having an inappropriate living situation since the prosecution did not present clear and convincing evidence to support such a finding.
The SORA Risk Assessment Guidelines and Commentary (at 14 [Nov. 1997]) provide that concurrent or subsequent offenses are not considered in the criminal history portion of the risk assessment instrument, but such offenses may be the basis for an upward departure ( see People v Milks, 28 AD3d 1163). Defendant's subsequent conviction in Queens County should not have been considered in the context of defendant's prior criminal history under factors 9 and 10 of the risk assessment instrument. Consequently, the 40 points assessed against defendant under factors 9 and 10 should be deducted from the 115 points assessed in the risk assessment instrument. Moreover, we find that there was no clear and convincing evidence establishing that defendant lived two blocks from a park where children play. Thus, an additional 10 points should be deducted from the total score assessed in the risk assessment instrument. In view of the foregoing, defendant's overall score should be lowered to 65 points, resulting in the presumptive classification of defendant as a level one sex offender. Under all the circumstances presented, an upward departure is not warranted. Accordingly, we modify the order of the City Court by providing that defendant is designated a level one sex offender.
Molia, J.P., Nicolai and Tanenbaum, JJ., concur.