| People v Carpenter |
| 2009 NY Slip Op 04780 [63 AD3d 1320] |
| June 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Frederic C.Carpenter Jr., Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Veronica M. Krause of counsel), forrespondent.
Mercure, J. Appeal from an order of the County Court of Cortland County (Ames, J.),entered January 7, 2008, which classified defendant as a risk level three sex offender pursuant tothe Sex Offender Registration Act.
In September 2000, defendant was separately convicted upon guilty pleas of two crimesarising from incidents in 1998 and 1999 that involved different victims. With respect to the firstincident, involving an 11-year-old relative, he pleaded guilty in July 2000 to rape in the seconddegree and was sentenced on September 11, 2000; the second incident involved his wife andgave rise to a guilty plea in March 2000—upon which defendant was sentenced onSeptember 6, 2000—to sexual abuse in the first degree. Defendant was sentenced to 2 to 4years in prison upon the rape conviction, to run concurrently with a three-year term ofimprisonment imposed upon the sexual abuse conviction, for which he was also sentenced to fiveyears of postrelease supervision.[FN*][*2]
In anticipation of defendant's release from prison, theBoard of Examiners of Sex Offenders prepared a consolidated risk assessment instrument(hereinafter RAI) and case summary, in which it considered both offenses together. The Boardpresumptively classified defendant as a risk level three sex offender, with no basis for adownward departure. Following a hearing, County Court assessed an additional 10 points basedupon defendant's failure to accept responsibility, and classified him as a risk level three sexoffender. The court further indicated that even if the offenses were consideredseparately—resulting in a level two classification for each offense—it would grantthe People's request for an upward departure to level three for both crimes based upon the factthat, at the time of his convictions, defendant had committed the other crime. Defendant appealsand we now affirm.
Defendant asserts that the Board erred in failing to provide separate RAIs for the twooffenses, which he maintains are not connected to one another. In that regard, we note that whilethe guidelines and commentary to the Sex Offender Registration Act provide that "currentoffenses" need not occur in a single criminal incident in order to be considered together (SexOffender Registration Act: Risk Assessment Guidelines and Commentary, at 5-6 [2006]), theguidelines further specify that the current offense portion of an RAI must be completed only "onthe basis of all of the crimes that were part of the instant disposition" (Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 5 [2006] [emphasis added]).Thus, although it is appropriate to consider additional sex crimes as current offenses when adefendant has confessed but the People have elected, as part of a single disposition, not toprosecute those crimes (see People vVanderveer, 37 AD3d 214 [2007]), other concurrent offenses that are not part of asingle disposition are more properly considered as factors that may provide a basis for upwarddeparture from a presumptive risk level (see Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 14 [2006]; see generally People v McCollum, 41 AD3d 1187, 1188 [2007],lv denied 9 NY3d 807 [2007]).
Here, the People indicate that the offenses were correctly considered in a consolidated RAIbecause defendant pleaded guilty to both of them within a 48-hour period and receivedconcurrent sentences. This argument is contradicted both by the People's own statement of thefacts and the presentence investigation report, which indicate that defendant's pleas were enteredin March 2000 and July 2000—four months apart. Moreover, the sentences were imposedfive days apart by different judges, and the record before us is simply inadequate to permitintelligent appellate review of the question of whether the dispositions were in any wayconnected. Nevertheless, even assuming that the Board erred in failing to provide separate RAIs,such error would be harmless inasmuch as County Court "reviewed all relevant evidence andmade 'a final determination of . . . defendant's risk level based on clear andconvincing evidence thereof' " (Peoplev Sanchez, 20 AD3d 693, 694 [2005], quoting People v Brown, 302 AD2d 919,920 [2003]; see People vMcClelland, 38 AD3d 1274, 1275 [2007]).
In particular, County Court properly relied upon the sworn statement of defendant's wife, thecolloquy at the hearing, the case summary and the presentence investigation report regarding thesexual abuse conviction to assess points against defendant for use of violence, sexual contact andfailure to accept responsibility, and determine that he would be presumptively classified at a risklevel two with respect to that crime (seePeople v Richards, 50 AD3d 1329, 1330 [2008], lv denied 10 NY3d 715[2008]; People v LaRock, 45 AD3d1121, 1122-1123 [2007]; People vColeman, 45 AD3d 1118, 1118 [2007], lv denied 10 NY3d 705 [2008]; see also People v Arroyo, 54 AD3d1141, 1141 [2008], lv denied 11 NY3d 711 [2008]). Defendant concedes that, asCounty Court found, he was correctly classified at a presumptive level two with respect to [*3]the crime of rape in the second degree. In our view, the courtproperly concluded that an upward departure to level three would be warranted if the crimeswere assessed separately due to the existence of each concurrent crime, which would nototherwise be taken into account by the guidelines if separate RAIs were provided (seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 14 [2006]; see also People v Miller, 48 AD3d774, 775 [2008], lv denied 10 NY3d 711 [2008]). Accordingly, we decline to disturbthe court's classification of defendant as a risk level three sex offender.
Defendant's remaining arguments have been considered and found to be lacking in merit.
Cardona, P.J., Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: These sentences were also torun concurrently with a prison sentence of 4 to 12 years imposed upon an unrelated drug crime.