Majority
Appeal by the defendant from an order of the County Court, Westchester County (Cacace, J.), entered February 24, 2012, which, after a hearing, granted the petition of the People of the State of New York pursuant to Correction Law § 168-o (3) for an upward modification of his risk level designation, and thereupon designated him a level three sex offender pursuant to Correction Law article 6-C.
In 2000, the defendant was convicted, upon a plea of guilty, of attempted dissemination of indecent material to minors in the first degree, and sentenced to a five-year term of probation. With respect to that conviction, in 2002, the defendant was designated a level one sex offender for the purposes of the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]). In 2011, the People petitioned pursuant to Correction Law § 168-o (3) for an upward modification of the defendant’s risk level designation. The County Court granted the petition, and designated the defendant a level three sex offender.
Pursuant to Correction Law § 168-o (3), the People may file a petition for an upward modification of a sex offender’s SORA risk level designation where the sex offender “(a) has been convicted of a new crime, or there has been a determination after a proceeding pursuant to [Criminal Procedure Law § 410.70] that the sex offender has violated one or more conditions imposed as part of a sentence of . . . probation . . . and (b) the conduct underlying the new crime or the violation is of a nature that indicates an increased risk of a repeat sex offense.” Here, the People demonstrated, by clear and convincing evidence (see Correction Law § 168-o [3]), that the defendant was convicted of a new crime and violated a condition of his probation, and that the conduct underlying the new crime and the violation was “of a nature that indicates an increased risk of a repeat sex offense” (Correction Law § 168-o [3]). Upon that showing, the County Court providently exercised its discretion in designating the defendant a level three sex offender.
Contrary to the defendant’s contention, the County Court did not err in granting the People’s petition for an upward modification without first obtaining a new Risk Assessment Instrument (hereinafter RAI) from the Board of Examiners of Sex Offenders (hereinafter the Board). Correction Law § 168-o specifies that, upon the receipt of such a petition, “the court shall forward a copy of the petition to the board and request an updated recommendation pertaining to the sex offender” (Correction Law § 168-o [4]). The County Court followed this procedure and received an “updated recommendation” from the Board, in the form of a letter. The RAI, an “objective assessment instrument” created by the Board to assess an offender’s “presumptive risk level” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006]) was designed to assist the courts in reaching an initial SORA deter
Accordingly, we affirm the order granting the People’s petition and thereupon designating the defendant a level three sex offender. Mastro, J.P., Skelos, Dickerson and LaSalle, JJ., concur.