Majority
Appeal by the defendant from an order of the Supreme Court, Kings County (DiMango, J.), dated February 27, 2014, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In determining the defendant’s risk level under the Sex Offender Registration Act (Correction Law art 6-C [hereinafter SORA]), the Supreme Court improperly assessed him 20 points under risk factor 7, based on his relationship as a foster parent to the two victims. The evidence demonstrated that the defendant was the step-grandfather of the two female victims, and had access to them both before and after becoming a foster parent. The People failed to establish, by clear and convincing evidence, that the defendant established or promoted the foster parent relationship with his step-granddaughters for the primary purpose of victimization (see People v Stein, 63 AD3d 99 , 101-102 [2009]; Sex Offender Registration Act: Risk Guidelines and Commentary [hereinafter SORA Guidelines] at 12 [2006]). Accordingly, the court should not have assessed the defendant 20 points under risk factor 7. Removing those 20 points reduces his point total to 100, rendering him a presumptive level two sex offender.
However, the Supreme Court properly determined, in the alternative, that an upward departure from a level two to a level three designation was warranted. The SORA Guidelines
Cases cited
- People v. Stein 63 AD3d 99 at 101-102 p. 1083
- People v. Botindari 107 AD3d 1607 p. 1084
- People v. Carbone 89 AD3d 1392 at 1393 p. 1084
- People v. May 77 AD3d 1388 p. 1084
- People v. Mantilla 70 AD3d 477 p. 1084
- People v. Frosch 69 AD3d 699 p. 1084