Opinion
1054 KA 20-01243
01-28-2022
The PEOPLE of the State of New York, Respondent, v. Kenny STEVENS, Defendant-Appellant.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified in the exercise of discretion by determining that defendant is a level one risk pursuant to the Sex Offender Registration Act and as modified the order is affirmed without costs.
Memorandum: Defendant appeals from an order classifying him as a level two sex offender stemming from his 1996 conviction in Virginia for the statutory rape of a 14-year-old female "without the use of force." Defendant was 18 years old at the time of the offense, which the Board of Examiners of Sex Offenders characterized as an "isolated incident." Defendant successfully completed both sex offender treatment and substance abuse treatment, and he has not been convicted of any other sex crime. Under these circumstances, we agree with defendant, in the exercise of our own discretion, that his presumptive level two classification overestimates his "dangerousness and risk of sexual recidivism" ( People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; see People v. Carter , 138 A.D.3d 706, 707-708, 30 N.Y.S.3d 141 [2d Dept. 2016] ). We therefore modify the order by determining that defendant is a level one risk (see People v. George , 141 A.D.3d 1177, 1178, 35 N.Y.S.3d 625 [4th Dept. 2016] ; see also People v. Brocato , 188 A.D.3d 728, 728-729, 131 N.Y.S.3d 645 [2d Dept. 2020] ; People v. Fisher , 177 A.D.3d 615, 615-616, 111 N.Y.S.3d 80 [2d Dept. 2019] ). Defendant's remaining contention is academic in light of our determination.