| People v Green |
| 2013 NY Slip Op 08421 [112 AD3d 801] |
| December 18, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Andre Green, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J.Dennehy, and Arieh Schulman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(Dowling, J.), dated June 15, 2011, which, after a hearing, designated him a level two sexoffender pursuant to Correction Law article 6-C.
Ordered that the order is reversed, on the law and the facts, without costs ordisbursements, and the defendant is designated a level one sex offender.
In establishing a defendant's risk level pursuant to the Sex Offender Registration Act(Correction Law art 6-C), "the People bear the burden of establishing the factssupporting the determination sought by clear and convincing evidence" (People v King, 80 AD3d681, 682 [2011]; see Correction Law § 168-n [3]; People v Hewitt, 73 AD3d880 [2010]).
As the People correctly concede, the defendant was improperly assessed 15 pointsunder risk factor 14 for release without supervision. The defendant should have beenassessed only five points under this category for release with supervision (cf. People v Miller, 77 AD3d1386, 1387 [2010]; Peoplev Leeks, 43 AD3d 1251, 1252 [2007]).
Further, the People failed to establish by clear and convincing evidence that, underrisk factor 7, the defendant entered into his relationship with the victim for the primarypurpose of victimization (see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at 12 [2006]). The case summary prepared by the Board ofExaminers of Sex Offenders indicated that the defendant's relationship with the victimwas "unknown," and none of the other documents in the record reflects that thedefendant's purpose in meeting or developing a relationship with the victim was tovictimize him (see People vJohnson, 104 AD3d 1321, 1321-1322 [2013]; People v Johnson, 93 AD3d1323, 1324 [2012]; Peoplev Fisher, 22 AD3d 358, 359 [2005]). Therefore, the Supreme Court erred inassessing the defendant 20 points under risk factor 7.
Based on the foregoing, 30 points should be subtracted from the total risk assessmentscore of 95, which places the defendant's point score within the range of a level one sexoffender. Accordingly, we reverse the order and designate the defendant a level one sexoffender. Mastro, J.P., Skelos, Balkin and Roman, JJ., concur.