Opinion
11-19-2015
The PEOPLE of the State of New York, Respondent, v. Charles J. UPDYKE, Appellant.
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.
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.
Before: LAHTINEN, J.P., EGAN JR., LYNCH and DEVINE, JJ.
Opinion
LYNCH, J.
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 A.D.3d 5, 946 N.Y.S.2d 587 (2d Dept.2012), lv. denied 20 N.Y.3d 853, 2012 WL 6116677 (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 A.D.3d 23, 792 N.Y.S.2d 236 (2005), lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975 (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 A.D.3d 957, 958, 829 N.Y.S.2d 741 [2007], lv. denied 8 N.Y.3d 812, 836 N.Y.S.2d 551, 868 N.E.2d 234 [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 A.D.3d 54, 55–56, 7 N.Y.S.3d 708 (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, 7 N.Y.S.3d 708).
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.
LAHTINEN, J.P., EGAN JR. and DEVINE, JJ., concur.