| People v Barody |
| 2008 NY Slip Op 06905 [54 AD3d 1109] |
| September 18, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AugustusBarody, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), forrespondent.
Carpinello, J. Appeal from an order of the County Court of Schenectady County (Giardino,J.), entered March 3, 2008, which classified defendant as a risk level two sex offender pursuantto the Sex Offender Registration Act.
In 1990, defendant pleaded guilty to the crime of lewd and lascivious conduct with a childless than 16 years of age and was sentenced to 45 months of probation. In 1993, defendant wasconvicted of aggravated stalking, which violated his sex offender probation, and was againsentenced to probation. In 1994, defendant pleaded guilty to burglary and aggravated stalking,again violating his probation, and was sentenced to two years in prison. Defendant was releasedfrom prison to probation in August 1996 and successfully completed his probation in August2001. All of these events took place while defendant resided in Florida.
In 2006, defendant moved to New York, whereupon he was notified by the Board ofExaminers of Sex Offenders that he was required to register under the Sex Offender RegistrationAct (see Correction Law art 6-C). In connection therewith, the Board evaluated defendantat a risk factor score of 75 which presumptively placed him at a risk level two classification, butrecommended an upward modification to risk level three. Following a risk assessment hearing,County Court departed from the Board's recommendation, evaluating him at a risk factor score of[*2]45, which presumptively placed him at a risk level oneclassification, but concluded that an upward departure to risk level two was warranted basedupon the nature of defendant's crimes. Defendant now appeals.
Defendant contends that County Court erred in modifying his classification upward. Suchmodification is only warranted when there exists an aggravating factor of a kind, or to a degree,that is otherwise not adequately taken into account by the Board's Risk Assessment Guidelinesand the court's finding of such is supported by clear and convincing evidence (see SexOffender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; People v Roe, 47 AD3d 1156,1156 [2008]; People v Lesch, 38AD3d 1129, 1130 [2007], lv denied 8 NY3d 816 [2007]). Here, in adjustingdefendant's classification upward, County Court relied on the "nature" of defendant's convictionsfor aggravated stalking and burglary. However, the record does not contain any facts underlyingthose two convictions. Notably, even were one or both of these offenses to have involved "sexualmisconduct," under the guidelines defendant would have only been assessed an additional 10points, for a total of 55 points, still reasonably below the threshold for a risk level twoclassification (see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary [2006]). As such, we find that, based on this record, County Court's deviation fromthe presumptive risk level was not supported by clear and convincing evidence.
Cardona, P.J., Mercure, Peters and Kavanagh, JJ., concur. Ordered that the order is reversed,on the law, without costs, and defendant is classified as a risk level one sex offender under theSex Offender Registration Act.