THE PEOPLE OF THE STATE OF NEW YORK v. <<

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

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.

518118

Decided: April 30, 2015

Before:  Peters, P.J., Lahtinen, Rose and Devine, JJ. Lawrence Brown, Bridgeport, for appellant. William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), for respondent.

OPINION AND ORDER

Calendar Date:  March 26, 2015

Appeal from an order of the County Court of Madison County (McDermott, J.), entered December 17, 2013, which classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to rape in the third degree and an unrelated burglary in the third degree, and he was sentenced to a term of imprisonment.   In anticipation of his release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI) pursuant to the Sex Offender Registration Act (see Correction Law art 6–C) designating him as a presumptive risk level II sex offender, which the People adopted.   Defendant objected to the imposition of 30 points for “criminal history” under risk factor 9 of the RAI because it was based on a juvenile delinquency adjudication.   Relying on People v. Campbell (98 AD3d 5 [2d Dept 2012], lv denied 20 NY3d 853 [2012] ), defendant contended that Family Ct Act § 381.2(1) precluded the use of the juvenile delinquency adjudication and, without the 30 points for criminal history, defendant would be presumptively classified as a risk level I sex offender.   County Court, citing our previous decisions in People v. Pride (37 AD3d 957 [2007], lv denied 8 NY3d 812 [2007] ) and People v. Dort (18 AD3d 23 [2005], lv denied 4 NY3d 885 [2005] ), denied defendant's challenge to the 30–point assessment and classified defendant as a risk level II sex offender.   Defendant appeals.

We reverse.   We agree with the holding of People v. Campbell (supra ) that the Board “exceeded its authority by adopting that portion of the [Sex Offender Registration Act] Guidelines which includes juvenile delinquency adjudications in its definition of crimes for the purpose of determining a sex offender's criminal history” (id. at 12;  see Family Ct Act § 380.1[1];  Green v. Montgomery, 95 N.Y.2d 693, 697 [2001] ).   Contrary to the People's argument, the fact that the points at issue in Campbell were assessed under risk factor 8 of the RAI does not require a different conclusion because both risk factor 8 and risk factor 9 fall within the criminal history category of the RAI. To the extent that our prior decisions suggest that juvenile delinquency adjudications may be considered crimes for purposes of the RAI, we note that the conflict between the Guidelines and the Family Ct Act was not raised in those cases and they should no longer be followed.   Our ruling is limited, however, to precluding the use of juvenile delinquency adjudications to assess points for criminal history under the RAI, and we do not hold that the facts underlying a juvenile delinquency adjudication may not be considered when determining whether to depart from the recommended risk level (see e.g. People v. Gray, 84 N.Y.2d 709, 712 [1995];  Dukes v. New York City Hous. Auth., 63 A.D.2d 690, 691 [1978] ).

Peters, P.J., Lahtinen and Devine, JJ., concur.

ORDERED that the order is reversed, on the law, without costs, and matter remitted to the County Court of Madison County for further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court

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