DAVIS, RICHARD A., PEOPLE v ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1248
    KA 15-00948
    PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    RICHARD A. DAVIS, DEFENDANT-APPELLANT.
    THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DANIEL J.
    PUNCH OF COUNSEL), FOR RESPONDENT.
    Appeal from an order of the Supreme Court, Erie County (Deborah
    A. Haendiges, J.), entered November 6, 2014. The order determined
    that defendant is a level two risk pursuant to the Sex Offender
    Registration Act.
    It is hereby ORDERED that the order so appealed from is
    unanimously reversed on the law without costs and the matter is
    remitted to Supreme Court, Erie County, for further proceedings in
    accordance with the following memorandum: Defendant appeals from an
    order determining that he is a level two risk pursuant to the Sex
    Offender Registration Act (Correction Law § 168 et seq.). Contrary to
    defendant’s contention, Supreme Court did not err in assessing 20
    points against defendant under the risk factor for a continuing course
    of sexual misconduct. “[T]he court was not limited to considering
    only the crime of which defendant was convicted in making its
    determination” (People v Feeney, 58 AD3d 614, 615; see People v
    Glanowski, 140 AD3d 1625, 1625-1626, lv denied 28 NY3d 902). The
    People proved by clear and convincing evidence that defendant engaged
    in “two or more acts of sexual contact, at least one of which is an
    act of sexual intercourse, oral sexual conduct, anal sexual conduct,
    or aggravated sexual contact, which acts are separated in time by at
    least 24 hours” (Sex Offender Registration Act: Risk Assessment
    Guidelines and Commentary, at 10 [2006]; see Glanowski, 140 AD3d at
    1625-1626; People v Scott, 71 AD3d 1417, 1418, lv denied 14 NY3d 714).
    We agree with defendant, however, that the court failed to
    consider his request for a downward departure. We therefore reverse
    the order and remit the matter to Supreme Court for a determination of
    defendant’s request for a downward departure (see People v Cobb, 141
    -2-                          1248
    KA 15-00948
    AD3d 1174, 1175; People v Lewis, 140 AD3d 1697, 1697).
    Entered:   December 23, 2016                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 15-00948

Filed Date: 12/23/2016

Precedential Status: Precedential

Modified Date: 12/23/2016