Opinion
850 KA 14-00398
07-02-2015
The PEOPLE of the State of New York, Respondent, v. Stephen M. DURYEE, Defendant–Appellant.
Jeannie D. Michalski, Conflict Defender, Geneseo, for Defendant–Appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
Jeannie D. Michalski, Conflict Defender, Geneseo, for Defendant–Appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.
Opinion
MEMORANDUM: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ), defendant contends that County Court erred in granting the People's request for an upward departure from risk level two, which was the presumptively correct risk level pursuant to his score on the risk assessment instrument. “The court's discretionary upward departure [to a level three risk] was based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument” (People v. Sherard, 73 A.D.3d 537, 537, 903 N.Y.S.2d 3, lv. denied 15 N.Y.3d 707, 909 N.Y.S.2d 21, 935 N.E.2d 813 ), including “defendant's overall criminal history” (People v. Goodwin, 126 A.D.3d 610, 611, 3 N.Y.S.3d 598 ). Here, defendant's criminal history includes a prior sexual offense against a child (see People v. Tucker, 127 A.D.3d 1508, 1509, 7 N.Y.S.3d 704 ). The risk assessment instrument also did not take into account the fact that “at the time of the underlying offense defendant had already been adjudicated a level [one] offender” (People v. Faulkner, 122 A.D.3d 539, 539, 997 N.Y.S.2d 410, lv. denied 24 N.Y.3d 915, 4 N.Y.S.3d 601, 28 N.E.3d 37 ), and that defendant committed his most recent crime after having completed sex offender treatment.
Although defendant did not raise the issue, we note that there is a conflict between the order and the decision. As the court properly stated in its decision, defendant is not a sexually violent offender (see Correction Law § 168–a [3 ][a][i] ), but the order thereafter issued by the court stated that defendant is a sexually violent offender. Where, as here, “there is a conflict between a decision and order, the decision controls” (Matter of Quentin L., 231 A.D.2d 890, 891, 647 N.Y.S.2d 593 ; see Del Nero v. Colvin, 111 A.D.3d 1250, 1253, 975 N.Y.S.2d 825 ; Matter of Edward V., 204 A.D.2d 1060, 1061, 614 N.Y.S.2d 348 ), “and the order ‘must be modified to conform to the decision’ ” (Del Nero, 111 A.D.3d at 1253, 975 N.Y.S.2d 825 ). We therefore modify the order by vacating the determination that defendant is a sexually violent offender.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the determination that defendant is a sexually violent offender and as modified the order is affirmed without costs.