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

1248
KA 15-00948
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

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.


     Appeal from an order of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), entered November 6, 2014. The order determined
that defendant is a level two risk pursuant to the Sex Offender
Registration Act.

     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 in
accordance with the following 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 AD3d 614, 615; see People v
Glanowski, 140 AD3d 1625, 1625-1626, lv denied 28 NY3d 902). 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 AD3d at
1625-1626; People v Scott, 71 AD3d 1417, 1418, lv denied 14 NY3d 714).

     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
                                 -2-                          1248
                                                         KA 15-00948

AD3d 1174, 1175; People v Lewis, 140 AD3d 1697, 1697).




Entered:   December 23, 2016                   Frances E. Cafarell
                                               Clerk of the Court
