| People v Neuer |
| 2011 NY Slip Op 05762 [86 AD3d 926] |
| July 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kenneth W.Neuer, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), entered March 9,2010. The order determined that defendant is a level three risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three riskpursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 etseq.). Defendant failed to preserve for our review his contention that he was denied dueprocess when the District Attorney's Office, rather than the Board of Examiners of SexOffenders, prepared the risk assessment instrument (see People v Charache, 9 NY3d 829 [2007]; People v McElhearn, 56 AD3d978, 978-979 [2008], lv denied 13 NY3d 706 [2009]).
We agree with defendant that the People failed to establish by the requisite clear andconvincing evidence that he should be assessed 10 points under risk factor 10 based upon therecency of a prior sex crime (see generally Correction Law § 168-n [3]). Defendanthad not yet been convicted of that prior sex crime at the time he committed the present offense(see generally People v Weathersby,61 AD3d 1382, 1382-1383 [2009], lv denied 13 NY3d 701 [2009]; People v Marrero, 52 AD3d 797,798 [2008]). Rather, although defendant committed that prior sex crime approximately fivemonths before committing the present offense, he did not plead guilty to that crime until severalmonths after committing the present offense. For the same reason, we agree with defendant thatCounty Court erred in applying the presumptive override for a prior sex felony because defendanthad not been convicted of the prior sex felony at the time he committed the instant offense (see generally People v Ratcliff, 53AD3d 1110 [2008], lv denied 11 NY3d 708 [2008]).
We further agree with defendant that the People failed to establish by the requisite clear andconvincing evidence that he should be assessed 20 points under risk factor 13 based upon hisconduct while under supervision. The People correctly noted at the SORA hearing that defendantcommitted the instant offense while under supervision for a prior conviction of endangering thewelfare of a child, but risk factor 13 is concerned with a sex offender's post-[*2]offense behavior while supervised (see generally People v Warren, 42AD3d 593, 594-595 [2007], lv denied 9 NY3d 810 [2007]). Inasmuch as there is noindication that defendant engaged in any inappropriate behavior while confined or supervised forthe present offense, the court erred in assessing the 20 points under risk factor 13.
Taking into account the above errors in calculating defendant's risk level, we conclude thatdefendant is a presumptive level two risk rather than a presumptive level three risk, asdetermined by the court. We agree with the People, however, that an upward departure iswarranted under the circumstances of this case, a contention raised by the People during theSORA hearing and again raised by the People on appeal as an alternative basis for an affirmance(see People v Aldrich, 56 AD3d1228, 1229 [2008]). The "recalculated total risk factor score d[oes] not adequately take intoaccount defendant's criminal record or lack of success during periods of supervised release, andthus . . . an upward departure from the presumptive risk level [is] warranted" (People v Barnes, 34 AD3d 1227,1228 [2006], lv denied 8 NY3d 803 [2007]). The record establishes that "the risk ofrepeat offense is high and there exists a threat to the public safety" (Correction Law §168-l [6] [c]). Present—Scudder, P.J., Centra, Fahey, Lindley and Martoche, JJ.