| People v Pendelton |
| 2008 NY Slip Op 02982 [50 AD3d 659] |
| April 1, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Pendelton, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), forrespondent.
Appeal by the defendant, as limited by his brief, from so much of an order of the CountyCourt, Suffolk County (Hudson, J.), dated August 9, 2006, as, after a hearing, designated him alevel three sex offender pursuant to Correction Law article 6-C.
Ordered that the order is reversed insofar as appealed from, on the law, without costs ordisbursements, and the defendant is designated a level two sex offender.
In establishing the appropriate risk level determination under the Sex Offender RegistrationAct, the People bear the burden of proving the necessary facts by clear and convincing evidence(see Correction Law § 168-n [3]; People v Lawless, 44 AD3d 738 [2007]; People v Hardy, 42 AD3d 487[2007]). Here, the defendant argues that the People failed to establish by clear and convincingevidence that he should be assessed 10 points under risk level factor 10, "[r]ecency of priorfelony or sex crime" (Sex Offender Registration Act: Risk Assessment Guidelines [1997 ed]).We agree.
Risk level factor 10 provides that 10 points should be assessed if the "offender has a priorconviction or adjudication for a felony or sex crime that occurred less than three years before theinstant offense" (id.). The commentary to the guidelines provides that "[t]his three-yearperiod should be measured without regard to the time during which the offender was incarceratedor civilly committed. It is an offender's behavior during his time at liberty that is relevant inassessing his likelihood to reoffend" (Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at 15; cf. Penal Law § 70.04 [1] [b] [iv], [v]). In thiscase, the defendant's prior felony [*2]was committed, and hisconviction for it was entered, more than three years before he committed the sex crimes, and thePeople relied on the tolling provision. The People did not, however, provide any proof that thedefendant was incarcerated for sufficient periods to bring his prior crime within the three-yearrecency period. Consequently, the 10 points assessed under this risk level factor should not havebeen added to the defendant's point total. Without those 10 points, the defendant's presumptiverisk level is level two, and thus the defendant should be designated a risk level two offender. Wenote that the defendant remains classified as a "sexually violent offender" (Correction Law§ 168-a [3], [7] [b]) and will be subject to lifetime registration requirements (seeCorrection Law § 168-h [2]; § 168-o [1]). Fisher, J.P., Lifson, Covello andMcCarthy, JJ., concur.