People v. Barrier, 504329.

• Decision Date: 29 January 2009
• Docket Number: 504329.
• Citation: 58 A.D.3d 1086,872 N.Y.S.2d 219,2009 NY Slip Op 00473
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HERMAN BARRIER, Also Known as BARRY, Appellant.
• Court: New York Supreme Court — Appellate Division

58 A.D.3d 1086

872 N.Y.S.2d 219

2009 NY Slip Op 00473

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HERMAN BARRIER, Also Known as BARRY, Appellant.

504329.

Appellate Division of the Supreme Court of New York, Third Department.

January 29, 2009.

Appeal from an order of the County Court of Schenectady County (Drago, J.), entered April 29, 2008, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

Stein, J.

Defendant pleaded guilty to the crime of sexual abuse in the first degree and was sentenced, as a second felony offender, to seven years in prison and five years of postrelease supervision. The Board of Examiners of Sex Offenders recommended that defendant be classified as a risk level three sex offender and, following a hearing, County Court adopted the Board's recommendation. Defendant appeals and we now affirm.^*

Defendant first contends that County Court erred in considering his two prior New Jersey convictions for sex crimes because, under the laws of that state, he was not required to register as a sex offender. This contention, however, is without merit. In the risk assessment instrument, the term "crime" is used broadly and "includes criminal convictions, youthful offender adjudications and juvenile delinquency findings[, as all of] these determinations are reliable indicators of wrongdoing and, therefore, should be considered in assessing an offender's likelihood of reoffense and danger to public safety" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 6 [2006]). Consequently, even though defendant apparently was not required to register as a sex offender in New Jersey, these prior convictions were properly considered when assessing his risk level in New York. Indeed, to the extent that these 1984 offenses included all of the essential elements of rape in the first degree (see Penal Law § 130.35 [1]) and rape in the second degree (see Penal Law § 130.30 [1]), they unquestionably reflect upon defendant's likelihood of reoffense and danger to public safety (cf. Correction Law § 168-a [2] [a] [i]; [3] [b]).

Defendant further contends that it was improper for County Court to score these prior convictions against him by the addition of 30 points for risk factor 9 on the risk assessment instrument, while at the same time using these convictions as override factors that presumptively placed him at a risk level three classification. This claim is also without merit, as County Court expressly declined to "double-dip" and, because it considered defendant's prior convictions as override factors, it deducted the 30 points initially added by the Board for risk factor 9. In any event, we have previously determined that, where the prior felony conviction is for a sex crime, such conviction may be...