People v Smith

2006 NYSlipOp 09585

December 19, 2006

Appellate Division, Second Department

As corrected through Wednesday, February 14, 2007

The People of the State of New York, Appellant, v Carl Smith, Respondent.

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Appeal by the People from an order of the Supreme Court, Queens County (Latella, J.), dated November 4, 2005, which, after a hearing, designated the defendant a level two sex offender pursuant to Correction Law article 6-C.

Ordered that the order is reversed, on the law, without costs or disbursements, and the defendant is reclassified a level three sex offender.

As correctly argued by the People, the Supreme Court erred in assessing the defendant only five points under risk factor category nine. In light of the defendant's prior youthful offender adjudication for criminal possession of stolen property in the first degree, a class B felony (see Penal Law § 165.54), the Supreme Court should have assessed 15 points under risk factor category nine (see Sex Offender Registration Act: Risk Assessment Guidelines & Commentary, at 6-7, 14 [1997 ed]; People v Swackhammer, 25 AD3d 892 [2006]; People v Masters, 19 AD3d 387 [2005]; People v Peterson, 8 AD3d 1124, 1125 [2004]; People v Moore, 1 AD3d 421 [2003]). Thus, upon properly assessing these 15 points, the defendant's total risk factor score is 110 points, which places the defendant's point range within that of a level three sex offender. Prudenti, P.J., Krausman, Mastro and Rivera, JJ., concur.