| People v Denny |
| 2011 NY Slip Op 06607 [87 AD3d 1230] |
| September 29, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kenneth A.Denny, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan Becker of counsel), forrespondent.
Stein, J. Appeal from an order of the County Court of St. Lawrence County (Richards, J.),entered February 8, 2010, which classified defendant as a risk level three sex offender pursuantto the Sex Offender Registration Act.
Defendant pleaded guilty to attempted rape in the second degree in 2008 and was sentencedto a prison term of 1½ to 3 years. In anticipation of his release from prison, the Board ofExaminers of Sex Offenders prepared a risk assessment instrument assessing points for, amongother things, defendant's prior conviction for attempted rape in the second degree. Although thepoints assessed classified defendant as a risk level two sex offender, the Board further noted thathis prior conviction constituted an override factor presumptively subjecting him to a risk levelthree classification. County Court conducted a hearing, following which it classified defendant asa risk level three predicate sex offender. Defendant now appeals.
We reverse. Defendant argued before County Court that his prior conviction was adequatelytaken into account by the points assessed for it in the risk assessment instrument and that, in lightof the evidence presented at the hearing, a risk level two classification was appropriatenotwithstanding the presumptive override. County Court rejected that argument, stating itserroneous belief that it had no "discretion to otherwise modify [defendant's] classification" giventhe override (see People v Sanchez,20 AD3d 693, 694-695 [2005]; Sex Offender Registration [*2]Act: Risk Assessment Guidelines and Commentary, at 4 [2006]).Inasmuch as the court failed to apply the correct "presumptive" standard and to adequatelyconsider defendant's assertions of mitigating circumstances, remittal is required so that a properevaluation of his risk level may occur (see People v Reynolds, 68 AD3d 955, 956 [2009]; People vSanchez, 20 AD3d at 694-695). Defendant's remaining contention is, therefore, academic.
Peters, J.P., Spain, McCarthy and Garry, JJ., concur. Ordered that the order is reversed, onthe law, without costs, and matter remitted to the County Court of St. Lawrence County forfurther proceedings not inconsistent with this Court's decision.