| People v Lancaster |
| 2015 NY Slip Op 04106 [128 AD3d 786] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Roderick Lancaster, Appellant. |
Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of counsel), forappellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller ofcounsel), for respondent.
Appeal by the defendant from an order of the County Court, Dutchess County(Forman, J.), dated August 27, 2013, which, after a hearing, designated him a level threesex offender and a predicate sex offender pursuant to Correction Law article 6-C.
Ordered that the order is modified, on the law, by deleting the provision thereofdesignating the defendant a predicate sex offender; as so modified, the order is affirmed,without costs or disbursements.
After a risk assessment hearing pursuant to the Sex Offender Registration Act(Correction Law art 6-C), the County Court designated the defendant a level three sexoffender, based on the assessment of 135 points against him, as well as the application ofan automatic override to risk level three.
The defendant was properly assessed 25 points under risk factor 2, based on acts ofsexual intercourse, and 20 points under risk factor 4, based on a continuing course ofsexual misconduct. Contrary to the defendant's contention, the County Court properlyrelied on the eight-year-old complainant's grand jury testimony in assessing these points,regardless of whether proper procedures were followed in ascertaining that thecomplainant was competent to testify under oath (see People v Mingo, 12 NY3d 563, 576 [2009]; People v Jewell, 119 AD3d1446, 1447 [2014]; Peoplev Law, 94 AD3d 1561, 1563 [2012]).
However, the County Court should not have relied on the defendant's priorconviction of assault with intent to commit rape by a military tribunal (seeManual for Courts-Martial, United States, part IV, ¶ 64.b [2012]) to assess 30points under risk factor 9 (based on a prior sex crime), apply an automatic override torisk level three (based on a prior felony conviction for a sex crime), and designate thedefendant a predicate sex offender (pursuant to Correction Law § 168-a [7][c], based on his prior conviction of a sex offense). Contrary to the County Court'sdetermination, the military offense of which the defendant was convicted did not qualifyas a "sex offense," as defined in Correction Law § 168-a (2) (d) (ii) (see People v Kennedy, 7 NY3d87, 91-92 [2006]). Furthermore, contrary to the People's contention, the defendant'smilitary offense does not "include[ ] all of the essential elements" (Correction Law§ 168-a [2] [d] [i]) of attempted rape in the first degree under New Yorklaw, and thus does not qualify as a "sex offense" on that basis.
Although the defendant's prior military offense of assault with intent to commit rape[*2]does not qualify as a sex offense, it does evidence aprior criminal history, thereby warranting the assessment of five points under risk factor9. These five points, when added to the 60 points that the defendant concedes wereproperly assessed against him, and the 45 points assessed under risk factors 2 and 4,discussed above, yield a point total of 110, which is within risk level three. Accordingly,while the defendant should not have been designated a predicate sex offender, he wasnonetheless properly adjudicated a level three sex offender. Skelos, J.P., Chambers,Maltese and Duffy, JJ., concur.