People v. Shen Chao Chen , 144 A.D.3d 1119 ( 2016 )

People v Shen Chao Chen (2016 NY Slip Op 08056)

People v Shen Chao Chen

2016 NY Slip Op 08056

Decided on November 30, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 30, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
SANDRA L. SGROI
BETSY BARROS
FRANCESCA E. CONNOLLY, JJ.

2013-03477

[*1]People of State of New York, respondent,

v

Shen Chao Chen, appellant.

Lynn W. L. Fahey, New York, NY (Dina Zloczower of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Deanna Russo on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Griffin, J.), dated March 12, 2013, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the defendant is designated a level one sex offender.

The defendant was assessed 75 points on the risk assessment instrument, rendering him presumptively a level two sex offender. The Supreme Court, after a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), assessed 75 points against the defendant and designated him a level two sex offender. The defendant challenges the assessment of 30 points under risk factor 1 for being armed with a dangerous instrument during the underlying incident. Without those 30 points, the defendant would be assessed only 45 points, rendering him presumptively a level one sex offender.

As the People correctly concede, they failed to prove by clear and convincing evidence that the defendant was armed with a dangerous instrument during the underlying incident, thereby making the assessment of 30 points under risk factor 1 improper (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 7-8 [2006]). At the SORA hearing, the defendant, through his counsel, asserted that he possessed a BB gun during the incident. However, the People did not present any evidence that the gun was loaded and operable, or that it was used as a bludgeoning object (see People v Swain, 46 AD3d 1157). Furthermore, the People did not present any evidence that the defendant threatened to use the gun against the victims (cf. People v Pettigrew, 14 NY3d 406, 409; People v Dodt, 61 NY2d 408, 414-415).

Accordingly, the defendant must be designated a level one sex offender.

In light of our determination, the defendant's remaining contention need not be reached.

HALL, J.P., SGROI, BARROS and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court