GAMBLE, RICKEY, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
643
KA 15-00470
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
RICKEY GAMBLE, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT 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 (Victoria M.
Argento, J.), entered February 17, 2015. The order affirmed an order
of City Court determining 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 of County Court that
affirmed an order of City Court determining that he is a level three
risk pursuant to the Sex Offender Registration Act (Correction Law
§ 168 et seq.). According to defendant, City Court erred in failing
to recognize that it had the discretion “not to assess” points under
two risk factors based on a youthful offender adjudication and erred
in instead treating defendant’s request “not to assess points” as a
request for a downward departure from the presumptive risk level. We
reject that contention inasmuch as the court lacked discretion to
decline to consider evidence of the youthful offender adjudication in
determining defendant’s presumptive risk level. “[I]t is well settled
that youthful offender adjudications are to be treated as crimes for
purposes of assessing the defendant’s likelihood of re-offending and
danger to public safety” (People v Williams, 122 AD3d 1378, 1379
[internal quotation marks omitted]; see Sex Offender Registration Act:
Risk Assessment Guidelines and Commentary at 6, 13; see also People v
Francis, 137 AD3d 91, 99-100).
Entered: July 1, 2016 Frances E. Cafarell
Clerk of the Court