THE PEOPLE OF THE STATE OF NEW YORK v. TODD ROUGHT (2017)

MEMORANDUM AND ORDER

Calendar Date:  October 19, 2017

Appeal from an order of the County Court of Broome County (Cawley Jr., J.), entered March 27, 2015, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

In 2008, defendant pleaded guilty to rape in the second degree, two counts of course of sexual conduct against a child in the second degree and two counts of endangering the welfare of a child and was sentenced to eight years in prison, to be followed by 10 years of postrelease supervision.  The convictions stemmed from him having sexual intercourse on several occasions during 2006 and 2007 with two girls under the age of 12.  The Board of Examiners of Sex Offenders submitted a risk assessment instrument that presumptively classified defendant as a risk level three sex offender (150 points) in accordance with the Sex Offender Registration Act (see Correction Law art 6–C).  Following a hearing, County Court reduced defendant's total risk factor score to 140 points, still within the presumptive risk level three range, and classified him as a sexually violent offender.  Defendant now appeals.

We affirm.  Defendant's only contention on appeal is that he was erroneously assessed 30 points under risk factor 9 (the number and nature of prior crimes) for the same conduct for which he was assessed 10 points under risk factor 8 (age at first sex crime).  We disagree.  This Court has previously held that “the age of offenders at the time of their first sex crime and whether they have a criminal history that includes ․ sex offenses are not duplicative factors resulting in the assessment of points for the same conduct, but, rather, are cumulative predictors of the likelihood of reoffense” (People v. Barney, 126 AD3d 1245, 1246 [2015], lv denied 25 NY3d 912 [2015]];  accord People v. Miller, 149 AD3d 1279, 1281 [2017] ).  Accordingly, County Court properly assessed points under risk factors 8 and 9 for the same underlying offense.

Egan Jr., J.P., Devine, Clark and Mulvey, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court