                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: November 19, 2015                     519870
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

CHARLES J. UPDYKE,
                    Appellant.
________________________________


Calendar Date:   October 21, 2015

Before:   Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ.

                               __________


      Susan M. Patnode, Rural Law Center of New York, Albany
(George Hoffman of counsel), for appellant.

      John Muehl, District Attorney, Cooperstown (Michael F.
Getman of counsel), for respondent.

                               __________


Lynch, J.

      Appeal from an order of the County Court of Otsego County
(Lambert, J.), entered August 4, 2014, which classified defendant
as a risk level II sex offender pursuant to the Sex Offender
Registration Act.

      In February 2012, defendant pleaded guilty to rape in the
second degree, and he was sentenced to a prison term of three
years with three years of postrelease supervision. In
anticipation of his release, the Board of Examiners of Sex
Offenders prepared a risk assessment instrument (hereinafter RAI)
pursuant to the Sex Offender Registration Act (see Correction Law
art 6-C) designating defendant as a presumptive risk level II sex
offender, which the People adopted. Defendant objected to the
                              -2-                519870

imposition of 40 points for criminal history under risk factors 8
and 9 of the RAI because it was based on a juvenile delinquency
adjudication. Relying on People v Campbell (98 AD3d 5 [2d Dept
2012], lv denied 20 NY3d 853 [2012]), defendant contended that
Family Ct Act § 381.2 (1) precluded the use of the juvenile
delinquency adjudication and, without the 40 points for criminal
history, defendant would be presumptively classified as a risk
level I sex offender. County Court, citing this Court's previous
decision in People v Dort (18 AD3d 23 [2005], lv denied 4 NY3d
885 [2005]), denied defendant's challenge to the 40-point
assessment and classified defendant as a risk level II sex
offender (see People v Pride, 37 AD3d 957, 958 [2007], lv denied
8 NY3d 812 [2007]). Defendant appeals.

      The People join defendant's request that the underlying Sex
Offender Registration Act classification be reversed and that the
matter be remitted to County Court for further proceedings
because the court assessed points for criminal history based on a
juvenile delinquency adjudication. We agree that, based on our
recent holding in People v Shaffer (129 AD3d 54, 55-56 [2015]),
County Court is precluded from using juvenile delinquency
adjudications to assess points for criminal history under the
RAI, although the facts underlying a juvenile delinquency
adjudication may still be "considered when determining whether to
depart from the recommended risk level" (id. at 56).

     Lahtinen, J.P., Egan Jr. and Devine, JJ., concur.
                              -3-                  519870

      ORDERED that the order is reversed, on the law, without
costs, and matter remitted to the County Court of Otsego County
for further proceedings not inconsistent with this Court's
decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
