        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

653
KA 14-01893
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LORENZO GEORGE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Monroe County Court (Christopher S.
Ciaccio, J.), entered September 15, 2014. 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 is
unanimously modified in the exercise of discretion by determining that
defendant is a level two risk pursuant to the Sex Offender
Registration Act and as modified the order is affirmed without costs.

     Memorandum: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). Pursuant to the total risk
factor score in the risk assessment instrument, defendant was
presumptively a level three risk. The evidence at the SORA hearing
established that the 19-year-old defendant engaged in nonforcible
sexual intercourse with a 14-year-old female acquaintance. Defendant
was convicted upon his guilty plea of, among other things, sexual
misconduct (Penal Law § 130.20 [1]), a class A misdemeanor, and the
original charge of rape in the second degree (§ 130.30 [1]) was
dismissed.

     We agree with defendant that a downward departure from the
presumptive risk level is warranted in this case. Contrary to the
contention of the People, we conclude that defendant preserved for our
review his request for a downward departure inasmuch as he asked
County Court to exercise its discretion to depart from the
recommendation of the Board of Examiners of Sex Offenders (cf. People
v Johnson, 11 NY3d 416, 421; see generally Matter of New York State
Bd. of Examiners of Sex Offenders v Ransom, 249 AD2d 891, 891-892).
In light of the totality of the circumstances, particularly the
relatively slight age difference between defendant and the victim, as
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                                                         KA 14-01893

well as the undisputed evidence that the victim’s lack of consent was
premised only on her inability to consent by virtue of her age, we
conclude in the exercise of our own discretion that the assessment of
25 points under the second risk factor, for sexual contact with the
victim, results in an overassessment of defendant’s risk to public
safety (see People v Carter, 138 AD3d 706, 707-708; Sex Offender
Registration Act: Risk Assessment Guidelines and Commentary, at 9
[2006]; see generally People v Goossens, 75 AD3d 1171, 1172). We
therefore modify the order by determining that defendant is a level
two risk.




Entered:   July 8, 2016                         Frances E. Cafarell
                                                Clerk of the Court
