People v Updyke

People v Updyke 2015 NY Slip Op 08481 Decided on November 19, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 19, 2015
519870

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

CHARLES J. UPDYKE, Appellant.

Calendar Date: October 21, 2015
Before: Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ.

Susan M. Patnode, Rural Law Center of New York, Albany (George Hoffman of counsel), for appellant.

John Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), for respondent.

Lynch, J.

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Otsego County (Lambert, J.), entered August 4, 2014, which classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act.

In February 2012, defendant pleaded guilty to rape in the second degree, and he was sentenced to a prison term of three years with three years of postrelease supervision. 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 defendant as a presumptive risk level II sex offender, which the People adopted. Defendant objected to the

imposition of 40 points for criminal history under risk factors 8 and 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 40 points for criminal history, defendant would be presumptively classified as a risk level I sex offender. County Court, citing this Court's previous decision in People v Dort (18 AD3d 23 [2005], lv denied 4 NY3d 885 [2005]), denied defendant's challenge to the 40-point assessment and classified defendant as a risk level II sex offender (see People v Pride, 37 AD3d 957, 958 [2007], lv denied 8 NY3d 812 [2007]). Defendant appeals.

The People join defendant's request that the underlying Sex Offender Registration Act classification be reversed and that the matter be remitted to County Court for further proceedings because the court assessed points for criminal history based on a juvenile delinquency adjudication. We agree that, based on our recent holding in People v Shaffer (129 AD3d 54, 55-56 [2015]), County Court is precluded from using juvenile delinquency adjudications to assess points for criminal history under the RAI, although the facts underlying a juvenile delinquency adjudication may still be "considered when determining whether to depart from the recommended risk level" (id. at 56).

Lahtinen, J.P., Egan Jr. and Devine, JJ., concur.

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