| People v Aldrich |
| 2008 NY Slip Op 08916 [56 AD3d 1228] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David D.Aldrich, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James Ritts of counsel), forrespondent.
Appeal from an order of the Ontario County Court (William F. Kocher, J.), entered June 11,2007. The order determined that defendant is a level two risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydetermining that defendant is a level one risk pursuant to the Sex Offender Registration Act andas modified the order is affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level two riskpursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).County Court's determination is not supported by the record inasmuch as the court improperlyassessed 30 points under the categories of "Sexual contact with victim" and "Release withsupervision." The People correctly concede that the court erred in assessing 25 points forattempted sexual intercourse because there was no evidence of actual sexual intercourse betweendefendant and the victim as required to assess points under the category of "Sexual contact withvictim" (see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 2, 9 [2006]). In addition, an offender released into the community under thesupervision of "a probation or parole officer who oversees a sex offender caseload or whootherwise specializes in the management of such offenders" should not be assessed any points forrelease under supervision (see Risk Assessment Guidelines and Commentary, at 17). ThePeople correctly concede that defendant was released under the terms of that specializedsupervision, and we thus conclude that the court erred in assessing five points under the categoryof "Release with supervision." As a result of the court's errors, defendant should have beenassessed 55 points, and the court should have determined that defendant is a level one risk. Wetherefore modify the order accordingly.
Contrary to the People's contention, which we consider because it is an alternative basis foran affirmance (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539,545-546 [1983]), the court properly determined that the People did not meet their burden ofproving by clear and convincing evidence that defendant should be assessed 20 points forphysical helplessness. Finally, the remaining contention of the People that the court should havegranted an upward departure to a level three risk based on defendant's history of abuse and druguse is not properly [*2]before us, in the absence of a cross appealby the People (see generally Koch v Consolidated Edison Co. of N.Y., 62 NY2d 548, 562n 10 [1984], rearg denied 63 NY2d 771 [1984], cert denied 469 US 1210[1985]; Matter of Herman vVillafane, 9 AD3d 525, 526 n [2004]). Present—Hurlbutt, J.P., Martoche, Smith,Fahey and Peradotto, JJ.