| People v Weathersby |
| 2009 NY Slip Op 03268 [61 AD3d 1382] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LeshunWeathersby, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.),entered August 14, 2007. The order determined that defendant is a level three risk pursuant to theSex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant tothe Sex Offender Registration Act (Correction Law § 168 et seq.), defendantcontends that Supreme Court erred in determining that the People established by clear andconvincing evidence that he should be assessed 10 points under the risk factor based upon therecency of a prior felony offense. We reject that contention. Pursuant to the commentary to therisk assessment guidelines, 10 points should be assessed under that risk factor "if an offender hasa prior felony or sex crime within three years of the instant offense. This three-year periodshould be measured without regard to the time during which the offender was incarcerated orcivilly 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 14 [2006]; see People v Marrero, 52 AD3d 797, 798 [2008]). The instantoffense was committed on October 6, 2001, and defendant was convicted of a felony offense onSeptember 2, 1998, more than three years earlier. The case summary establishes, however, thatdefendant was sentenced to three separate periods of incarceration during the time periodbetween the prior conviction and the date of the instant offense. Although the People failed topresent evidence establishing precisely how much of that period defendant was actuallyincarcerated, they presented evidence establishing that defendant was sentenced to a term ofincarceration of six months upon his violation of probation with respect to the prior felony, aswell as two terms of incarceration of 180 days and 90 days, respectively, for misdemeanorconvictions. Thus, we conclude that the People established by clear and convincing evidence thatdefendant was incarcerated for sufficient periods to reduce the time between the conviction forthe prior offense and the date of the instant offense to within the requisite three-year period(cf. Marrero, 52 AD3d at 799;People v Pendelton, 50 AD3d 659 [2008], lv denied 11 NY3d 702 [2008]).Present—Scudder, P.J., Peradotto, Carni, Green and Gorski, JJ.