People v. Kettles

Appeal from an order of the Supreme Court, Monroe County (Frank E Geraci, Jr., A.J.), entered August 11, 2005. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Defendant was presumptively classified at that risk level based upon the total risk factor score on the risk assessment instrument (see generally People v Brown, 302 AD2d 919, 920 [2003]). Supreme Court concluded, however, that defendant was improperly assessed 10 points under the risk factor based upon the recency of a prior felony, and the subtraction of those points reduced his total risk factor score to 105. Although that total risk factor score presumptively classified defendant as a level two risk, the court concluded that an upward departure was warranted. Contrary to defendant’s contention, the court’s determination is supported by clear and convincing evidence. The court properly concluded that the total risk factor score did not adequately take into account defendant’s prior criminal history, particularly defendant’s repeated violations of probation (see People v Thomas, 307 AD2d 759, 760 [2003]; see generally People v Goodwin, 35 AD3d 1285, 1285-1286 [2006]). Present—Scudder, P.J., Hurlbutt, Green and Pine, JJ.