| People v Felice |
| 2012 NY Slip Op 07282 [100 AD3d 609] |
| November 7, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Daniel Felice, Appellant. |
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Appeal by the defendant from an order of the County Court, Dutchess County (Forman, J.),dated October 29, 2010, which, upon a decision dated October 26, 2010, after a hearing,designated him a level three sexually violent offender pursuant to Correction Law article 6-C.The notice of appeal from the decision dated October 26, 2010, is deemed to be a notice ofappeal from the order dated October 29, 2010 (see CPLR 5512 [a]).
Ordered that the order dated October 29, 2010, is reversed, on the law, without costs ordisbursements, and the matter is remitted to the County Court, Dutchess County, for a reopenedhearing and a new determination in accordance herewith.
In 2004 the defendant was convicted, upon his plea of guilty, of sodomy in the first degree(see Penal Law § 130.50 [3]). In evaluating the defendant for registration as a sexoffender pursuant to the Sex Offender Registration Act (see Correction Law article 6-C;hereinafter SORA), the defendant was assessed a total of 120 points, which presumptively placedhim in the level three sexually violent offender category. As relevant to the instant appeal, at theSORA hearing, the County Court assessed the defendant 10 points under risk factor 8 and 30points under risk factor 9 based upon the defendant's prior juvenile delinquency adjudication forcommitting an act which, if committed by an adult, would have constituted the crime of unlawfulimprisonment in the first degree (see Penal Law § 135.10).
In light of this Court's recent holding in People v Campbell (98 AD3d 5 [2012]), the defendant's priorjuvenile delinquency adjudication should not have been considered in determining hisappropriate risk level designation under SORA. Accordingly, the defendant should not have beenassessed 10 points under risk factor 8 and should have been assessed only 15 points under riskfactor 9, which results in a total risk factor score of 95 points, making him a presumptive leveltwo sexually violent offender. However, the record of the SORA hearing indicates that thePeople would have sought an upward departure had the County Court not designated thedefendant a level three sexually violent offender. Under the circumstances of this case, we remitthe matter to the County Court, Dutchess County, to reopen the SORA hearing for the purpose ofdetermining whether an upward departure from the defendant's presumptive designation as alevel two sexually violent offender is warranted (see e.g. People v Stewart, 61 AD3d 1059, 1061 [2009]; People v King, 46 AD3d 529[2007]; People v Swain, 46 AD3d1157, 1159 [2007]; People vKraus, 45 AD3d 826, 827 [2007]). Rivera, J.P., Dickerson, Hall and Cohen, JJ., concur.