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

640
KA 12-00605
PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DWIGHT MOSS, 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 March 5, 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 affirmed without costs.

     Memorandum: On appeal from an order determining that defendant
is a level three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.), defendant contends that Supreme
Court violated Correction Law § 168-n (3) by making an upward
departure from the presumptive risk level without requiring the People
to provide him with prior notice of their intent to seek such a
departure. We reject that contention. The Risk Assessment Instrument
(RAI) prepared by the Board of Examiners of Sex Offenders assigned
defendant 115 points, rendering him a presumptive level three risk.
At the SORA hearing, the court agreed with defendant that he was
incorrectly assessed 10 points for the recency of his prior offense,
and thus the court reduced his RAI score by that amount, which placed
him at the high end of the range for a presumptive level two risk.
The court, however, properly concluded that, because defendant had
convictions for two prior sex offenses, he is nevertheless a level
three risk based on the presumptive override for a prior felony
conviction of a sex crime (see Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary at 3-4 [2006]; People v Barnes,
34 AD3d 1227, 1227-1228, lv denied 8 NY3d 803; see also People v
Iverson, 90 AD3d 1561, 1562, lv denied 18 NY3d 811). Defendant’s
reliance on the relevant notice provisions in Correction Law § 168-n
(3) is misplaced inasmuch as the People did not
                            -2-                  640
                                           KA 12-00605

seek an upward departure.




Entered:   June 14, 2013          Frances E. Cafarell
                                  Clerk of the Court
