GIBSON, TERRANCE, PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
490
KA 15-01843
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
TERRANCE GIBSON, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Monroe County Court (Christopher S.
Ciaccio, J.), entered October 13, 2015. 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 reversed on the law without costs and the matter is
remitted to Monroe County Court for further proceedings in accordance
with the following memorandum: On appeal from an order determining
that he is a level three risk pursuant to the Sex Offender
Registration Act (Correction Law § 168 et seq.), defendant contends
that County Court erred in assessing points for his criminal history
based upon a prior juvenile delinquency adjudication. We agree.
Defendant was assessed 15 points under risk factor 9 for a prior crime
as a juvenile delinquent, and the court, relying on People v Catchings
(56 AD3d 1181, 1182, lv denied 12 NY3d 701), rejected defendant’s
challenge to the assessment of points under risk factor 9. As we
recently held in People v Brown (148 AD3d 1705, ___), however, a
juvenile delinquency adjudication may not be considered a crime for
purposes of assessing points in a SORA determination, and Catchings
should no longer be followed to that extent. Consequently, we
conclude that the court erred in considering defendant’s juvenile
delinquency adjudication in assessing 15 points under risk factor 9.
Removing the improperly assessed points under risk factor 9
renders defendant a presumptive level two risk. Under the
circumstances of this case, we remit the matter to County Court for
further proceedings to determine whether an upward departure is
warranted (see Brown, 148 AD3d at ___).
Entered: April 28, 2017 Frances E. Cafarell
Clerk of the Court