PEOPLE v. MOLLENKOPF

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Richard MOLLENKOPF, Appellant.

Decided: September 25, 2008

Before:  CARDONA, P.J., CARPINELLO, ROSE, KANE and KAVANAGH, JJ. Richard Marris, Syracuse, for appellant. Donald F. Cerio Jr., District Attorney, Wampsville (Jeffrey A. Aumell of counsel), for respondent.

Appeal from an order of the County Court of Madison County (DiStefano, J.), entered July 11, 2007, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

In 2005, defendant pleaded guilty to attempted sodomy in the second degree and was sentenced as a second felony offender to a prison term of 2 to 4 years.   In anticipation of defendant's release from custody, the Board of Examiners of Sex Offenders gave defendant a risk assessment score of 100, thereby presumptively classifying him as a risk level II sex offender, but recommended an upward departure to risk level III status.   Following a hearing, County Court assigned defendant an additional 20 points under the category of relationship with the victim, thus raising his risk assessment score to 120 and placing him in the risk level III range.   As a result, the court classified defendant as a risk level III sex offender.

Defendant's sole contention on this appeal is that County Court erred in assigning him 20 risk assessment points based upon his relationship with the victim, the absence of which would afford him risk level II status.   We disagree.   Although the record contains evidence that defendant had long known the victim, was friends with the victim's father and lived with the victim's aunt, the case summary and the victim's sworn statements provide clear and convincing evidence that defendant cultivated his relationship with the victim in order to sexually abuse him (see People v. Grosfeld, 35 A.D.3d 692, 693, 826 N.Y.S.2d 428 [2006] ).   Accordingly, we conclude that County Court appropriately assigned 20 points in connection with the category of relationship with the victim.

ORDERED that the order is affirmed, without costs.

KAVANAGH, J.

CARDONA, P.J., CARPINELLO, ROSE and KANE, JJ., concur.

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