                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 26, 2015                    517195
________________________________

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

JOSHUA BARNEY,
                    Appellant.
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Calendar Date:   February 9, 2015

Before:   Lahtinen, J.P., McCarthy, Egan Jr. and Clark, JJ.

                             __________


     Martin J. McGuinness, Saratoga Springs, for appellant.

      Glenn MacNeill, Acting District Attorney, Malone, for
respondent.

                             __________


McCarthy, J.

      Appeal from an order of the County Court of Franklin County
(Main Jr., J.), entered June 26, 2013, which classified defendant
as a risk level III sex offender and a sexually violent offender
pursuant to the Sex Offender Registration Act.

      Defendant was charged in two indictments with rape in the
first degree, rape in the second degree (two counts) and rape in
the third degree, stemming from his sexual contact with two
girls, aged 14 and 16. He pleaded guilty to attempted rape in
the first degree in full satisfaction of the charges and was
sentenced to 3½ years in prison with 15 years of postrelease
supervision. The Board of Examiners of Sex Offenders prepared a
risk assessment instrument that presumptively classified
defendant as a risk level III sex offender (135 points) and a
                              -2-                517195

sexually violent offender in accordance with the Sex Offender
Registration Act (see Correction Law art 6-C). Following a
hearing, County Court reduced defendant's total risk factor score
to 115 points, still within the presumptive risk level III
classification. The court also classified defendant as a
sexually violent offender. Defendant now appeals.

      We affirm. Defendant's sole contention on appeal is that
he was improperly assessed 30 points under risk factor 9 for the
same conduct that he had been assessed 10 points under risk
factor 8. We disagree. Both risk factors relate to an
offender's criminal history. Offenders are assessed 10 points
under risk factor 8 if they were 20 years old or younger at the
time of their first sex crime (see Sex Offender Registration Act:
Risk Assessment Guidelines and Commentary, at 13 [2006]). The
basis for points being assessed in this category is that "[t]he
offender's age at the commission of his [or her] first sex crime
. . . is a factor associated with recidivism: those who offend at
a young age are more prone to reoffend" (Sex Offender
Registration Act: Risk Assessment Guidelines and Commentary, at
13 [2006]). Regarding risk factor 9, as relevant here, an
offender is assessed 30 points for a prior conviction or
adjudication for a prior violent felony, misdemeanor sex crime or
endangering the welfare of a child. According to the Risk
Assessment Guidelines, "[a]n offender's prior criminal history is
significantly related to his [or her] likelihood of sexual
recidivism, particularly when his [or her] past includes violent
crimes or sex offenses" (Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary, at 13 [2006]). In our
view, the age of offenders at the time of their first sex crime
and whether they have a criminal history that includes violent
crimes or sex offenses are not duplicative factors resulting in
the assessment of points for the same conduct, but, rather, are
cumulative predictors of the likelihood of reoffense (see People
v Pietarniello, 53 AD3d 475, 476-477 [2008], lv denied 11 NY3d
707 [2008]; but see People v Wilbert, 35 AD3d 1220, 1221 [2006]).
Accordingly, County Court did not err in assessing points under
risk factors 8 and 9 for the same underlying offense.

     Lahtinen, J.P., Egan Jr. and Clark, JJ., concur.
                        -3-                  517195

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
