People v Franco

People v Franco 2013 NY Slip Op 03168 Decided on May 2, 2013 Appellate Division, First 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 on May 2, 2013
Tom, J.P., Friedman, Sweeny, Feinman, JJ.
9950 2096/01

[*1]The People of the State of New York, Respondent,

v

Carlos Franco, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Natalie Rea
of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Malancha
Chanda of counsel), for respondent.

Order Supreme Court, New York County (Renee A. White, J.), entered on or about February 1, 2011, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6—C), unanimously affirmed, without costs.

The court properly assessed 30 points for defendant's prior violent felony conviction even though he had not yet been sentenced on that conviction at the time he committed the underlying sex offense. We find no basis for applying the sequentiality requirement of the predicate felony offender sentencing statutes to the risk factor for prior violent felonies.

Although the Risk Assessment Guidelines and Commentary for factor 9 indicates that the term "violent felony" will have the same meaning as in Penal Law § 70.02(1), this does not require the wholesale adoption of the recidivist sentencing statutes contained in Penal Law article 70, including § 70.04(1)(b)(ii), which requires that a defendant have been sentenced on the prior violent felony before it may be used as a predicate violent felony for sentencing purposes. The Sex Offender Registration Act is "not a penal statute and the registration requirement is not a criminal sentence" (Matter of North v Board of Examiners of State of N.Y., 8 NY3d 745, 752 [2007]); registration under the statute is not designed to punish, "but rather to protect the public" (People v Windham, 10 NY3d 801, 802 [2008]). CPL § 1.20(13) defines "conviction" as the entry of a plea or verdict of guilty, which occurred here before defendant committed the [*2]
underlying sex crime (see People v Wood 60 AD3d 1350 [4th Dept 2009]; Matter of Smith v Devane, 73 AD3d 179, 182 [3d Dept 2010], lv denied 15 NY3d 708; see also People v Montilla, 10 NY3d 663 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 2, 2013

CLERK