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

325
KA 11-02115
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JESSIE J. DUKES, 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 Supreme Court, Monroe County (Frank
P. Geraci, Jr., A.J.), entered August 31, 2011. 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 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.). We reject defendant’s contention that
Supreme Court erred in assessing 20 points under the risk factor for
unsatisfactory conduct while confined or under supervision, based on
sexual misconduct by defendant. Contrary to defendant’s contention,
there is no requirement that the conduct be “recent” in order for the
court to assess 20 points in that category. Indeed, the Risk
Assessment Guidelines provide that if an offender, “while in custody
or under supervision, has been involved in inappropriate sexual
behavior . . . the guidelines assess the offender 20 points” (Sex
Offender Registration Act: Risk Assessment Guidelines and Commentary,
at 16 [2006] [emphasis added]; see People v Carpenter, 60 AD3d 833,
833).




Entered:    March 15, 2013                         Frances E. Cafarell
                                                   Clerk of the Court
