Opinion
2009-3 S C.
Decided December 2, 2009.
Appeal from an order of the Justice Court of the Town of Riverhead, Suffolk County (Richard A. Ehlers, J.), entered November 6, 2008. The order, following a hearing, designated defendant a level two sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is reversed without costs and defendant is designated a level one sex offender pursuant to Correction Law article 6-C.
PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ.
Defendant pleaded guilty to a charge of sexual misconduct (Penal Law § 130.20) which arose from an incident that had occurred on January 30, 2006 involving an underage female.
At the Sex Offender Registration Act (Correction Law art 6-C) hearing ( see Correction Law § 168-n), the risk assessment instrument submitted into evidence assessed defendant with a total score of 120. The Justice Court deducted 20 points assessed under factor number three and designated defendant a level two sex offender based upon a total score of 100.
On appeal, defendant contends that the People failed to establish by clear and convincing evidence that there was a continuing course of sexual misconduct warranting an assessment of 20 points under factor four of the risk assessment instrument. In addition, defendant contends that the court erred in assessing 20 points under factor seven, involving the relationship he had with the victim, since he was not a stranger to her and there was no proof adduced at the hearing establishing that the purpose of the relationship was to victimize this female.
Upon a review of the record, we find that there was no clear and convincing evidence establishing a continuing course of sexual misconduct. Moreover, the evidence adduced at the hearing established that defendant and the victim had been friends for over a year before the occurrence of the incident relating to the sexual misconduct charge. Furthermore, the People did not establish that the purpose of the relationship was to victimize the female. Consequently, a total of 40 points assessed under factors four and seven of the risk assessment instrument should have been deducted from the score. Accordingly, defendant's overall score should be lowered to 60 points, resulting in the presumptive classification of defendant as a level one sex offender.
In view of the foregoing, we reverse the Justice Court's order and designate defendant a level one sex offender.
We pass on no other issue.
Tanenbaum, J.P., Molia and Iannacci, JJ., concur.