         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
832
KA 10-00809
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KENNETH W. NEUER, DEFENDANT-APPELLANT.


GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Genesee County Court (Robert C.
Noonan, J.), entered March 9, 2010. 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: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). Defendant failed to preserve
for our review his contention that he was denied due process when the
District Attorney’s Office, rather than the Board of Examiners of Sex
Offenders, prepared the risk assessment instrument (see People v
Charache, 9 NY3d 829; People v McElhearn, 56 AD3d 978, 978-979, lv
denied 13 NY3d 706).

     We agree with defendant that the People failed to establish by
the requisite clear and convincing evidence that he should be assessed
10 points under risk factor 10 based upon the recency of a prior sex
crime (see generally Correction Law § 168-n [3]). Defendant had not
yet been convicted of that prior sex crime at the time he committed
the present offense (see generally People v Weathersby, 61 AD3d 1382,
1382-1383, lv denied 13 NY3d 701; People v Marrero, 52 AD3d 797, 798).
Rather, although defendant committed that prior sex crime
approximately five months before committing the present offense, he
did not plead guilty to that crime until several months after
committing the present offense. For the same reason, we agree with
defendant that County Court erred in applying the presumptive override
for a prior sex felony because defendant had not been convicted of the
prior sex felony at the time he committed the instant offense (see
generally People v Ratcliff, 53 AD3d 1110, lv denied 11 NY3d 708).
                                 -2-                           832
                                                         KA 10-00809

     We further agree with defendant that the People failed to
establish by the requisite clear and convincing evidence that he
should be assessed 20 points under risk factor 13 based upon his
conduct while under supervision. The People correctly noted at the
SORA hearing that defendant committed the instant offense while under
supervision for a prior conviction of endangering the welfare of a
child, but risk factor 13 is concerned with a sex offender’s post-
offense behavior while supervised (see generally People v Warren, 42
AD3d 593, 594-595, lv denied 9 NY3d 810). Inasmuch as there is no
indication that defendant engaged in any inappropriate behavior while
confined or supervised for the present offense, the court erred in
assessing the 20 points under risk factor 13.

     Taking into account the above errors in calculating defendant’s
risk level, we conclude that defendant is a presumptive level two risk
rather than a presumptive level three risk, as determined by the
court. We agree with the People, however, that an upward departure is
warranted under the circumstances of this case, a contention raised by
the People during the SORA hearing and again raised by the People on
appeal as an alternative basis for an affirmance (see People v
Aldrich, 56 AD3d 1228, 1229). The “recalculated total risk factor
score d[oes] not adequately take into account defendant’s criminal
record or lack of success during periods of supervised release, and
thus . . . an upward departure from the presumptive risk level [is]
warranted” (People v Barnes, 34 AD3d 1227, 1228, lv denied 8 NY3d
803). The record establishes that “the risk of repeat offense is high
and there exists a threat to the public safety” (Correction Law §
168-l [6] [c]).




Entered:   July 1, 2011                         Patricia L. Morgan
                                                Clerk of the Court
