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

1161
KA 14-00224
PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KENNETH G. EDMONDS, 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 (James J.
Piampiano, J.), entered January 7, 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 affirmed without costs.

     Memorandum: On appeal from an order determining that he is a
level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.), defendant contends that County Court
erred in assessing 20 points against him under the risk factor for a
continuing course of sexual misconduct. We agree. Although the
People presented evidence that defendant engaged in acts of sexual
contact with the victim on more than one occasion, they failed to
establish “when these acts occurred relative to each other” (People v
Redcross, 54 AD3d 1116, 1117).

     Reducing defendant’s score on the risk assessment instrument by
20 points results in a total risk factor score of 95 points, placing
defendant within the range of a presumptive level two risk. The
court, however, properly concluded in the alternative that defendant
is a level three risk based on the presumptive override for a prior
conviction of a felony sex crime (see People v Erving, 124 AD3d 447,
447, lv denied 25 NY3d 905; Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary at 3-4 [2006]). We reject
defendant’s contention that the presumptive override for prior felony
sex crime convictions was held unconstitutional or otherwise invalid
in People v Moss (22 NY3d 1094) or People v Moore (115 AD3d 1360). In
Moss, the Court of Appeals stated only that, “[a]s conceded by the
People, no basis in law exists for . . . [the] conclusion that an
automatic override increased [the] defendant’s presumptive risk level
                                 -2-                          1161
                                                         KA 14-00224

two designation to risk level three” (id. at 1095). In Moore, this
Court quoted that language from Moss and held that the court “erred in
increasing [the] defendant’s risk level based on its determination
that there was an automatic override” (id. at 1361). Moore supports
the well-established principle that the application of the override
for a prior felony sex crime is presumptive, not mandatory or
automatic (see People v Edney, 111 AD3d 612, 612; People v Reynolds,
68 AD3d 955, 956; see also People v Pace, 121 AD3d 1315, 1316, lv
denied 24 NY3d 914) and, contrary to defendant’s contention, it should
not be interpreted as holding that the presumptive override for a
prior felony sex crime conviction is per se invalid.




Entered:   November 20, 2015                   Frances E. Cafarell
                                               Clerk of the Court
