People v. Wassilie

• Decision Date: 06 January 2022
• Docket Number: 533513
• Parties: The PEOPLE of the State of New York, Respondent, v. Sam WASSILIE, Appellant.
• Court: New York Supreme Court — Appellate Division

201 A.D.3d 1117
160 N.Y.S.3d 174

The PEOPLE of the State of New York, Respondent,
v.
Sam WASSILIE, Appellant.

533513

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

Calendar Date: December 16, 2021
Decided and Entered: January 6, 2022

160 N.Y.S.3d 175

Angela Kelley, Albany, for appellant.

Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

201 A.D.3d 1117

Appeal from an order of the County Court of Columbia County (Koweek, J.), entered April 13, 2021, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

In 2015, defendant pleaded guilty to 10 counts of unlawful surveillance in the second degree and was sentenced to a maximum aggregate prison term of 2 to 7 years. The charges stem from defendant's conduct between November 2012 and October 2014 in surreptitiously using an imaging device to view, broadcast or record women and children in public bathrooms and other private areas without their knowledge or consent. In anticipation of his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument that presumptively classified defendant as a risk level two sex offender (90 points). At the ensuing hearing, the People offered into evidence the Board's risk assessment instrument with the attached case summary. Noting that it had presided over the plea proceeding and had, just prior to the hearing, reviewed that file and the presentence investigation report, County Court assessed defendant an additional 20 points under risk factor 4 (duration of offense conduct with victim: continuing course of sexual misconduct with the victim) and 10 points under risk factor 10 (recency of prior felony or sex crime), resulting in a presumptive risk level three sex offender classification (120 points). The court designated defendant as a level three sex offender and declined

160 N.Y.S.3d 176

his request for a downward departure. Defendant appeals.¹

Initially, as the People concede and our review of the record confirms, County Court erred in assessing points under risk factors 4 and 10. The assessment of points under risk factor 4 is warranted where a defendant has engaged in "either (i) two or more acts of sexual contact, at least one of which is an act of

201 A.D.3d 1118

sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours, or (ii) three or more acts of sexual contact over a period of at least two weeks" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006] [emphases added]). For purposes of risk classification, the Penal Law definition of terms is used (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 8 [2006]). The record does not reflect that defendant's crimes of conviction, for unlawful surveillance in the second degree (see Penal Law § 250.45[1], [3][a] ), involved any form of sexual contact (see Penal Law § 130.00[3] ). In the absence of any record evidence that defendant engaged in sexual contact with any victim, 20 points should not have been assessed under risk factor 4 (see People v. Carmichael, 192 A.D.3d 924, 925, 140 N.Y.S.3d 732 [2021] ; People v. Dilillo, 162 A.D.3d 915, 916, 81 N.Y.S.3d 56 [2018], lv denied 32 N.Y.3d 905, 2018 WL 4440546 [2018] ; cf. People v. Masi, 195 A.D.3d 1328, 1328–1329, 149 N.Y.S.3d 377 [2021] ; People v. Snay, 122 A.D.3d 1012, 1013, 995 N.Y.S.2d 422 [2014], lv denied 24 N.Y.3d 916, 2015 WL 688261 [2015] ). Likewise, the record lacks any evidence that defendant had a "prior felony or sex crime" within three years of the unlawful surveillance sex offenses and, thus, the court erred in assessing 10 points under risk factor 10 (see People v. Green, 192 A.D.3d 927, 927, 140 N.Y.S.3d 722 [2021], lv denied 37 N.Y.3d 910, 2021 WL 4188901 [2021] ; People v. Williams, 186 A.D.3d 883, 884, 128 N.Y.S.3d 605 [2020], lv denied 36 N.Y.3d 903, 2020 WL 7393384 [2020] ; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 14 [2006]).²

However, we find that that County Court properly followed the Board's recommendation in assessing five points under risk factor 9 for defendant's criminal history that did not include a felony or sex crime, based upon his conviction for driving while...