| People v Geier |
| 2008 NY Slip Op 08723 [56 AD3d 539] |
| November 12, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Geier, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Mark A. Garretto, Valerie A.Livingston, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County (R.Bellantoni, J.), dated October 31, 2007, which, after a hearing, designated him a level three sexoffender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the appellant's contention, it was not necessary for the County Court to make athreshold determination that the offenses he committed in California required him to register as asex offender in New York. Pursuant to Correction Law § 168-k (2), the Board ofExaminers of Sex Offenders (hereinafter the Board) is required to determine whether a personconvicted of a sex offense in a foreign jurisdiction must register as a sex offender in this state(see Matter of Mandel, 293 AD2d 750 [2002]). Thus, a challenge to a determination thatan individual is required to register as a sex offender must be raised in a CPLR article 78proceeding against the Board, and not in a court proceeding involving the separate and distinctrisk determination (see People v Pride,37 AD3d 957 [2007]; Matter ofChuruti v Devane, 29 AD3d 1139 [2006]; People v Williams, 24 AD3d 894 [2005]; People v Carabello,309 AD2d 1227 [2003]; Matter of Mandel, 293 AD2d 750 [2002]).
We agree with the appellant's contention that the People failed to prove, by clear andconvincing evidence, that the victims of the California offense were strangers to him within themeaning of the Sex Offender Registration Act guidelines for risk factor 7 (see SexOffender Registration Act: Risk [*2]Assessment Guidelines andCommentary, at 12 [2006]; People vMcGraw, 24 AD3d 525 [2005]). The Board did not assess points against the appellantfor risk factor 7 on the risk assessment instrument, and the evidence submitted at the hearingindicates that the appellant and the victims resided in the same foster home at the time of theoffenses. Under these circumstances, the defendant should not have been assessed 20 points forrisk factor 7 by the Supreme Court, and should have been presumptively classified as a level onerather than a level two offender.
However, the Supreme Court properly concluded that an upward departure to a level threedesignation was warranted based upon clear and convincing evidence of the existence ofaggravating factors not accounted for in the risk assessment instrument, including the appellant'sconfinement to a treatment center for prior acts of sexual misconduct, and his admission that hecommitted a subsequent sexual assault (see People v Hill, 50 AD3d 990 [2008]; People v Buss, 44 AD3d 634[2007]; People v McCollum, 41AD3d 1187 [2007]; People vJenkins, 34 AD3d 352 [2006]). Fisher, J.P., Miller, Dillon and Eng, JJ., concur.