| People v King |
| 2007 NY Slip Op 09566 [46 AD3d 529] |
| December 4, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Vincent King, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee,and Morgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Marrero, J.),dated March 7, 2006, which, after a hearing and upon the stipulation of settlement in Doe vPataki (3 F Supp 2d 456 [1998]), designated him a level three sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is reversed, on the law and in the exercise of discretion, without costsor disbursements, and the matter is remitted to the Supreme Court, Kings County, for a newhearing and, thereafter, a new determination on the issue of whether an upward departure fromthe defendant's presumptive risk level two classification is warranted.
"In establishing an offender's appropriate risk level assessment under [the Sex OffenderRegistration Act; hereinafter SORA], the People have 'the burden of proving the facts supportingthe determinations sought by clear and convincing evidence' (Correction Law § 168-n [3])"(People v Hardy, 42 AD3d 487,487 [2007], lv denied 9 NY3d 814 [2007]; see People v Lawless, 44 AD3d738 [2007]). Contrary to the defendant's contention, the proof presented by the People wassufficient to show, by clear and convincing evidence, both that the defendant used a dangerousinstrument in the commission of the subject crimes and that the victim was a "stranger" to thedefendant within the meaning of the SORA guidelines for risk factors one and seven.Accordingly, the Supreme Court properly assessed the defendant 30 points under risk factor 1and 20 points under risk factor seven (see Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 7, 12 [2006 ed]; People v Hardy, 42 AD3d 487 [2007], lv denied 9NY3d 814; [2007]).[*2]
However, as correctly conceded by the People in theirbrief, the Supreme Court improperly assessed the defendant 10 points under risk factor 10,"Recency of prior felony or sex crime." Without those 10 points, the defendant's total score is105, making the defendant a presumptive level two sex offender, rather than a level three sexoffender, as he was originally assessed, and finally determined to be by the Supreme Court. Sincethe Supreme Court did not rule on the People's request, in effect, for an upward departure in theevent that the defendant would not have otherwise been found to be a level three sex offender, itis appropriate to remit the matter to the Supreme Court, Kings County, for a new hearing anddetermination (see People vCostello, 35 AD3d 754 [2006]). Schmidt, J.P., Rivera, Florio and Balkin, JJ., concur.