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

357
KA 12-01878
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM J. MOORE, DEFENDANT-APPELLANT.


THEODORE W. STENUF, MINOA, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Onondaga County Court (Joseph E.
Fahey, J.), dated August 14, 2012. 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 reversed on the law without costs and the matter is
remitted to Onondaga County Court for further proceedings in
accordance with the following 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.). Based upon
the total risk factor score of 85 points on the risk assessment
instrument, defendant was presumptively classified as a level two
risk. County Court determined that defendant was a level three risk
based on the automatic override for a prior felony conviction of a sex
crime. That was error. “[N]o basis in law exists for . . . an
automatic override [to] increase[] defendant’s presumptive risk level
two designation to risk level three” (People v Moss, 22 NY3d 1094,
1095, citing Sex Offender Registration Act: Risk Assessment
Guidelines and Commentary at 3-4 [2006]). “A departure from the
presumptive risk level is warranted where there exists an aggravating
or mitigating factor of a kind or to a degree, not otherwise
adequately taken into account by the guidelines” (People v Scott, 111
AD3d 1274, 1275, lv denied 22 NY3d 861 [internal quotation marks
omitted]). “ ‘There must exist clear and convincing evidence of the
existence of special circumstance[s] to warrant an upward or downward
departure’ ” (id., quoting People v Guaman, 8 AD3d 545, 545). Because
the court erred in increasing defendant’s risk level based on its
determination that there was an automatic override, we reverse the
order, vacate defendant’s risk level determination and remit the
matter to County Court for further proceedings in compliance with
Correction Law § 168-
                                 -2-                           357
                                                         KA 12-01878

n (3) (see People v Hackett, 89 AD3d 1479, 1479-1480).




Entered:   March 28, 2014                       Frances E. Cafarell
                                                Clerk of the Court
