People v. Ritchie

• Decision Date: 11 March 2022
• Docket Number: 72 KA 20-00958
• Citation: 2022 NY Slip Op 01635
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JACOB RITCHIE, DEFENDANT-APPELLANT.
• Court: New York Supreme Court

2022 NY Slip Op 01635

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JACOB RITCHIE, DEFENDANT-APPELLANT.

No. 72 KA 20-00958

Supreme Court of New York, Fourth Department

March 11, 2022

ANDREW D. CORREIA, PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS, FOR RESPONDENT.

PRESENT: SMITH, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.

Appeal from an order of the Wayne County Court (John B. Nesbitt, J.), entered February 25, 2020. 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 Wayne County Court for further proceedings in accordance with the following memorandum: Defendant appeals from an order classifying him as a level three sex offender under the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). We reverse.

In its risk assessment instrument (RAI), the Board of Examiners of Sex Offenders (Board) assessed points in various categories, totaling 105 points, making defendant a presumptive level two risk. Based on his "prior felony conviction for a sex crime," however, the Board recommended an override to classify defendant as a presumptive level three risk. Nevertheless, when the parties appeared for the SORA hearing, defendant's counsel and the Assistant District Attorney agreed that defendant "should be scored at a Level II," and asked County Court to issue an order to that effect. The court responded, "So ordered," and the proceedings came to a close. No mention was made by anyone of the Board's recommendation for an override to risk level three.

In the order on appeal, however, the court assessed the 105 points recommended by the Board, but then also assessed an additional 10 points under risk factor 12, for failure to accept responsibility. That point assessment made defendant a presumptive level three risk. Based on its determination that defendant was a presumptive level three risk, the court stated that it "need not address the applicability of an override," but it noted that, had it adhered to the Board's point assessment, it would still have found the level three assessment appropriate "due to the override."

Defendant contends that the court erred in assessing points under risk factor 12. As a preliminary matter, we conclude...