People v. Pelletier

• Decision Date: 08 October 2021
• Docket Number: KA 20-01371,788
• Citation: 155 N.Y.S.3d 262,198 A.D.3d 1362
• Parties: The PEOPLE of the State of New York, Respondent, v. Austin PELLETIER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

198 A.D.3d 1362
155 N.Y.S.3d 262

The PEOPLE of the State of New York, Respondent,
v.
Austin PELLETIER, Defendant-Appellant.

788
KA 20-01371

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: October 8, 2021

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

198 A.D.3d 1362

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant contends that County Court engaged in impermissible double counting by assessing points against him under risk factors 12, 13 and 14 based on the same underlying conduct. We reject that contention. Defendant was properly assessed points under risk factor 12 because he refused to participate in sex offender treatment due to his unwillingness to abide by Internet restrictions, and he was properly assessed points under risk factor 13 because he violated the terms and conditions

155 N.Y.S.3d 264

of his probation. The violations in question concerned not only defendant's refusal to continue with treatment, but also his impermissible use of the Internet for sexually related purposes.

With respect to risk factor 14, there is no dispute that defendant was released from jail in Oklahoma without any supervision, and that he had no supervision when he moved to New York. Although defendant's release from jail without supervision was the result of his being terminated from probation, the assessment of points under both risk factor 13 and risk factor 14, based on his unsatisfactory conduct while supervised and his release without supervision, respectively, does not...