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

1249
KA 15-01402
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CLIFFORD BROWN, DEFENDANT-APPELLANT.


JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (DAVID M. PARKS OF COUNSEL),
FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Wayne County Court (Dennis M. Kehoe,
J.), dated April 27, 2015. 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 Wayne County Court for further proceedings in accordance
with the following memorandum: On appeal from an order determining
that he is a level two risk pursuant to the Sex Offender Registration
Act ([SORA] Correction Law § 168 et seq.), defendant contends that
County Court erred in assessing points for his criminal history based
upon a prior juvenile delinquency adjudication. We agree.

     In August 2005, when he was just over 13½ years old, defendant
was adjudicated a juvenile delinquent in New York for conduct against
a 10-year-old female that, if committed by an adult, would constitute
the crime of sexual abuse in the first degree (Penal Law § 130.65).
In June 2012, defendant was convicted in South Carolina, upon his plea
of guilty, of committing or attempting a lewd act upon a child under
the age of 16 (SC Code Ann former § 16-15-140) as a result of
defendant’s sexual conduct with a six-year-old male in March 2008.
Following the preparation of a risk assessment instrument by the Board
of Examiners of Sex Offenders (Board), the court conducted a hearing
during which defense counsel argued, among other things, that
defendant should not have been assessed 30 points under risk factor 9,
for a prior sex crime adjudication as a juvenile delinquent, and 10
points under risk factor 10, for a prior sex crime that occurred less
than three years before the instant South Carolina offense.
Specifically, defense counsel relied on People v Campbell (98 AD3d 5,
12-13, lv denied 20 NY3d 853), and argued that the Family Court Act
prohibited consideration of a juvenile delinquency adjudication in a
SORA determination. The court determined that it was constrained by
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                                                         KA 15-01402

our decision in People v Catchings (56 AD3d 1181, 1182, lv denied 12
NY3d 701), and rejected defendant’s challenge to the assessments under
risk factors 9 and 10.

     The risk assessment guidelines issued by the Board provide that a
juvenile delinquency adjudication is considered a crime for purposes
of assessing points under the criminal history section of the risk
assessment instrument (see Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary [Guidelines], at 6 [2006]).
Family Court Act § 381.2 (1) provides, however, that neither the fact
that a person was before Family Court for a juvenile delinquency
hearing, nor any confession, admission or statement made by such a
person is admissible as evidence against him or her in any other
court. Section 380.1 (1) further provides that “[n]o adjudication
under this article may be denominated a conviction and no person
adjudicated a juvenile delinquent shall be denominated a criminal by
reason of such adjudication.” Given this conflict between the
Guidelines and the plain language of the Family Court Act, we agree
with the Second Department’s holding in Campbell and conclude that the
Board “exceeded its authority by adopting that portion of the
Guidelines which includes juvenile delinquency adjudications in its
definition of crimes for the purpose of determining a sex offender’s
criminal history” (98 AD3d at 12; see People v Shaffer, 129 AD3d 54,
55; see generally Green v Montgomery, 95 NY2d 693, 697). We note that
the conflict between the Guidelines and the Family Court Act was not
before us in Catchings (56 AD3d at 1182) and, to the extent that our
decision in that case suggests that a juvenile delinquency
adjudication may be considered a crime for purposes of assessing
points in a SORA determination, it should not be followed. We
therefore conclude that the court erred in considering defendant’s
juvenile delinquency adjudication in assessing a total of 40 points
under risk factors 9 and 10.

     To the extent that defendant also challenges the court’s
assessment of 10 points under risk factor 8 for being 20 years old or
younger at the time of his first sex crime, defense counsel correctly
conceded during the SORA hearing that those points should be assessed
because defendant was indisputably under 20 years old when he
committed the sex crime in South Carolina (see Guidelines at 13).

     Removing the improperly assessed points under risk factors 9 and
10 renders defendant a presumptive level one risk. Under the
circumstances of this case, however, we remit the matter to County
Court for further proceedings to determine whether an upward departure
from defendant’s presumptive risk level is warranted (see People v
Updyke, 133 AD3d 1063, 1064; People v Leach, 106 AD3d 1387, 1388;
People v Felice, 100 AD3d 609, 610).




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
