Opinion
11-20-2015
The PEOPLE of the State of New York, Respondent, v. Kenneth G. EDMONDS, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DeJOSEPH, JJ.
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 assessing 20 points against him under the risk factor for a continuing course of sexual misconduct. We agree. Although the People presented evidence that defendant engaged in acts of sexual contact with the victim on more than one occasion, they failed to establish "when these acts occurred relative to each other" (People v. Redcross, 54 A.D.3d 1116, 1117, 864 N.Y.S.2d 206 ).
Reducing defendant's score on the risk assessment instrument by 20 points results in a total risk factor score of 95 points, placing defendant within the range of a presumptive level two risk. The court, however, properly concluded in the alternative that defendant is a level three risk based on the presumptive override for a prior conviction of a felony sex crime (see People v. Erving, 124 A.D.3d 447, 447, 998 N.Y.S.2d 191, lv. denied 25 N.Y.3d 905, 2015 WL 2105540 ; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3–4 [2006] ). We reject defendant's contention that the presumptive override for prior felony sex crime convictions was held unconstitutional or otherwise invalid in People v. Moss, 22 N.Y.3d 1094, 982 N.Y.S.2d 55, 5 N.E.3d 26 or People v. Moore, 115 A.D.3d 1360, 982 N.Y.S.2d 684. In Moss, the Court of Appeals stated only that, "[a]s conceded by the People, no basis in law exists for ... [the] conclusion that an automatic override increased [the] defendant's presumptive risk level two designation to risk level three" (id. at 1095, 982 N.Y.S.2d 55, 5 N.E.3d 26 ). In Moore, this Court quoted that language from Moss and held that the court "erred in increasing [the] defendant's risk level based on its determination that there was an automatic override" (id. at 1361, 982 N.Y.S.2d 684 ). Moore supports the well-established principle that the application of the override for a prior felony sex crime is presumptive, not mandatory or automatic (see People v. Edney, 111 A.D.3d 612, 612, 974 N.Y.S.2d 293 ; People v. Reynolds, 68 A.D.3d 955, 956, 891 N.Y.S.2d 451 ; see also People v. Pace, 121 A.D.3d 1315, 1316, 995 N.Y.S.2d 296, lv. denied 24 N.Y.3d 914, 2015 WL 588844 ) and, contrary to defendant's contention, it should not be interpreted as holding that the presumptive override for a prior felony sex crime conviction is per se invalid.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.