THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. TERRANCE GIBSON DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. TERRANCE GIBSON, DEFENDANT–APPELLANT.

KA 15–01843

Decided: April 28, 2017

PRESENT:  SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Monroe County Court for further proceedings in accordance with the following memorandum:  On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court erred in assessing points for his criminal history based upon a prior juvenile delinquency adjudication.  We agree.  Defendant was assessed 15 points under risk factor 9 for a prior crime as a juvenile delinquent, and the court, relying on People v. Catchings (56 AD3d 1181, 1182, lv denied 12 NY3d 701), rejected defendant's challenge to the assessment of points under risk factor 9. As we recently held in People v. Brown (148 AD3d 1705, _), however, a juvenile delinquency adjudication may not be considered a crime for purposes of assessing points in a SORA determination, and Catchings should no longer be followed to that extent.  Consequently, we conclude that the court erred in considering defendant's juvenile delinquency adjudication in assessing 15 points under risk factor 9.

Removing the improperly assessed points under risk factor 9 renders defendant a presumptive level two risk.  Under the circumstances of this case, we remit the matter to County Court for further proceedings to determine whether an upward departure is warranted (see Brown, 148 AD3d at _).

Frances E. Cafarell

Clerk of the Court