Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. Richard A. DAVIS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Daniel J. Punch of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Daniel J. Punch of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.
MEMORANDUM: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ). Contrary to defendant's contention, Supreme Court did not err in assessing 20 points against defendant under the risk factor for a continuing course of sexual misconduct. "[T]he court was not limited to considering only the crime of which defendant was convicted in making its determination" (People v. Feeney, 58 A.D.3d 614, 615, 871 N.Y.S.2d 340 ; see People v. Glanowski, 140 A.D.3d 1625, 1625–1626, 34 N.Y.S.3d 813, lv. denied 28 N.Y.3d 902, 2016 WL 4742320 ). The People proved by clear and convincing evidence that defendant engaged in "two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 10 [2006]; see Glanowski, 140 A.D.3d at 1625–1626, 34 N.Y.S.3d 813 ; People v. Scott, 71 A.D.3d 1417, 1418, 896 N.Y.S.2d 549, lv. denied 14 N.Y.3d 714, 2010 WL 2365708 ).
We agree with defendant, however, that the court failed to consider his request for a downward departure. We therefore reverse the order and remit the matter to Supreme Court for a determination of defendant's request for a downward departure (see People v. Cobb, 141 A.D.3d 1174, 1175, 34 N.Y.S.3d 923 ; People v. Lewis, 140 A.D.3d 1697, 1697, 32 N.Y.S.3d 789 ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Erie County, for further proceedings.