| People v Redcross |
| 2008 NY Slip Op 06911 [54 AD3d 1116] |
| September 18, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James M.Redcross, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Asha Thomas of counsel), forrespondent.
Peters, J.P. Appeal from an order of the County Court of Rensselaer County (McGrath, J.),entered November 8, 2007, which classified defendant as a risk level three sex offender pursuantto the Sex Offender Registration Act.
Defendant pleaded guilty to rape in the second degree and sodomy in the second degree andwas sentenced to a prison term of 3 to 6 years based upon his admission that he had sex with thethen 13-year-old victim on at least three separate occasions in January 2003. The Board ofExaminers of Sex Offenders recommended that defendant be classified as a risk level three sexoffender and, following a hearing, County Court adopted the Board's recommendation.Defendant now appeals, contending that he was improperly assessed points for continuing courseof sexual misconduct (20 points), recency of prior offense (10 points) and history of drug oralcohol abuse (10 points).
Preliminarily, although the underlying hearing was brief and County Court's discussion of thevarious risk factors may be characterized as terse, we cannot say "that the court's findingsconstituted merely a generic listing of factors . . . precluding meaningful appellatereview" (People v Carter, 35 AD3d1023, 1024 [2006], lv denied 8 NY3d 810 [2007] [internal quotation marks andcitations omitted]). Similarly unpersuasive is defendant's contention that he was improperlyassessed points for recency of prior offense and history of drug or alcohol abuse. We [*2]do, however, agree with defendant that the assessment of 20 pointsfor continuing course of sexual misconduct is not supported by clear and convincing evidence.
Pursuant to the Risk Assessment Guidelines and Commentary, 20 points may be assignedunder this factor when a defendant "engages in either (i) two or more acts of sexual contact, atleast one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, oraggravated sexual contact, which acts are separated in time by at least 24 hours, or (ii) three ormore acts of sexual contact over a period of at least two weeks" (Sex Offender Registration Act:Risk Assessment Guidelines and Commentary, at 10 [2006]). While the record plainlydemonstrates that defendant had sex with the victim on at least three occasions during January2003, it is silent as to when these acts occurred relative to each other. No mention of the offensedates is made in the presentence investigation report, the case summary or the hearing transcript,and the plea colloquy is noticeably absent from the record. Under such circumstances, we mustconclude that County Court erred in assessing 20 points under this risk factor (see People v Whalen, 22 AD3d900, 902 [2005]). As the absence of this factor reduces defendant's score enough topresumptively place him in a lower classification, County Court's order must be reversed (seePeople v Madlin, 302 AD2d 751 [2003]).
Rose, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the order is reversed, on thelaw, without costs, and defendant is classified as a risk level two sex offender under the SexOffender Registration Act.