State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 23, 2017 521725 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

AARON M. CURRENT,

Appellant.

________________________________

Calendar Date: January 17, 2017

Before: Peters, P.J., McCarthy, Egan Jr., Rose and Mulvey, JJ.

__________

Paul J. Connolly, Delmar, for appellant.

Karen Heggen, District Attorney, Ballston Spa (Gordon W.

Eddy of counsel), for respondent.

__________

Peters, P.J.

Appeal from an order of the County Court of Saratoga County

(Sypniewski, J.), entered August 11, 2015, which classified

defendant as a risk level three sex offender pursuant to the Sex

Offender Registration Act.

In April 2014, defendant pleaded guilty to rape in the

third degree, admitting that he had engaged in sexual intercourse

with a 15-year-old girl when he was 21 years old (see Penal Law

§ 130.25 [2]). In exchange, he was promised a 10-year period of

probation and a temporary no-contact order of protection was

issued in favor of the victim. While out on bail awaiting

sentencing, defendant was arrested and charged with criminal

contempt in the second degree for violating that order by having

social media contact with the victim, and he was released on an
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appearance ticket. Approximately one week later, defendant

absconded with the victim and they were later located at a hotel

in Georgia, where defendant was arrested on a warrant and

returned to New York. While in jail, defendant was arrested on

criminal contempt charges for violating an order of protection by

using another inmate to mail a letter to the victim while he was

incarcerated. Defendant later pleaded guilty to one count of

criminal contempt in the second degree in satisfaction of all

charges related to his violations of the orders of protection.

Upon his convictions, County Court sentenced defendant to two

consecutive one-year jail terms. In anticipation of his release,

the Board of Examiners of Sex Offenders prepared a risk

assessment instrument (hereinafter RAI) pursuant to the Sex

Offender Registration Act (see Correction Law art 6-C

[hereinafter SORA]) designating defendant as a presumptive risk

level three sex offender, which the People adopted. Following a

hearing, County Court classified defendant as a risk level three

sex offender, and he now appeals. 

Initially, we agree with defendant that 10 points were

improperly assessed for risk factor 8, his "[a]ge at first sex

crime." The People submitted evidence that the victim had

recounted to police that her first sexual contact with defendant

had occurred in June 2011, when defendant was 19 years old and

she was 13 years old; defendant admitted that this incident had

occurred but claimed that the victim had been the aggressor. As

defendant pointed out at the SORA hearing, however, he was never

charged with or convicted of a crime consisting of that conduct. 

Under the criminal history section of the RAI, 10 points may be

assessed under risk factor 8 where "[t]he offender committed a

sex offense, that subsequently resulted in an adjudication or

conviction for a sex crime, at age 20 or less" (Sex Offender

Registration Act: Risk Assessment Guidelines and Commentary,

Guidelines, factor 8 [2006] [emphasis added]). The commentary

similarly instructs, with regard to risk factor 8, that "criminal

convictions [and] youthful offender adjudications1 . . . are to

1 While the commentary to the guidelines includes juvenile

delinquency findings (see Sex Offender Registration Act: Risk

Assessment Guidelines and Commentary, at 6, 13 [2006]), this
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be considered in scoring this category, as well as [risk factors]

9 [number and nature of prior crimes] and 10 [recency of prior

felony or sex crime]" (Sex Offender Registration Act: Risk

Assessment Guidelines and Commentary, at 13 [2006] [emphases

added]). To that end, the commentary specifically indicates

that, for purposes of the criminal history section of the RAI,

"the term 'crime' includes criminal convictions [and] youthful

offender adjudications" and that "[c]onvictions for Penal Law

offenses and unclassified misdemeanors should be considered" (Sex

Offender Registration Act: Risk Assessment Guidelines and

Commentary, at 6 [2006]). The commentary further clarifies that,

"[w]here an offender has admitted committing an act of sexual

misconduct for which there has been no such judicial

determination, it should not be used in scoring his [or her]

criminal history" (Sex Offender Registration Act: Risk Assessment

Guidelines and Commentary, at 7 [2006]).

The People argue that defendant's age of 19 when he

committed his first sex offense is relevant to his risk of

recidivism because "those who offend at a young age are more

prone to reoffend" (Sex Offender Registration Act: Risk

Assessment Guidelines and Commentary, at 13 [2006]), regardless

of whether that offending misconduct resulted in a conviction. 

The guidelines and commentary clearly provide, however, that the

assessment of points under risk factor 8 requires a criminal

conviction or adjudication (see Sex Offender Registration Act:

Risk Assessment Guidelines and Commentary, at 6-7, 13 [2006];

People v Robertson, 101 AD3d 1671, 1672 [2012]). This

interpretation of the word "crime" in the phrase "first sex

crime" under risk factor 8, as requiring a conviction or

adjudication, is consistent with the interpretation of the word

crime in the phrases "prior crimes" and "prior felony or sex

crime" under risk factors 9 and 10 (see People v Barney, 126 AD3d

1245, 1246 [2015], lv denied 25 NY3d 912 [2015]; People v Arroyo,

54 AD3d 1141, 1141 [2008], lv denied 11 NY3d 711 [2008]; see also

Court has recognized that points may not be assessed for criminal

history consisting of a juvenile delinquency adjudication (see

People v Updyke, 133 AD3d 1063, 1063-1064 [2015]; People v

Shaffer, 129 AD3d 54, 55 [2015]).
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Sex Offender Registration Act: Risk Assessment Guidelines and

Commentary, at 13-14 [2006]; compare People v Neuer, 86 AD3d 926,

926-927 [2011], lv denied 17 NY3d 716 [2011]). While proof of

the commission of a prior sex crime committed by an offender at

age 20 or under that did not result in a conviction or

adjudication may be relied upon to argue in favor of an upward

departure (see People v McCollum, 41 AD3d 1187, 1188 [2007], lv

denied 9 NY3d 807 [2007]; People v Heichel, 20 AD3d 934, 935

[2005]), the People did not request this alternative relief from

County Court at any point. Accordingly, 10 points should be

deducted from the RAI under risk factor 8.2

However, we are not persuaded that defendant was improperly

assessed 10 points for failure to accept responsibility under

risk factor 12. Following defendant's guilty plea to statutory

rape, which may constitute evidence of his acceptance of

responsibility, he repeatedly violated the orders of protection

2 We recognize that the commentary provides that, in

completing the RAI, the Board and the SORA court will often

utilize the defendant's case file and may rely on "any other

reliable source" including "the sex offender's admissions" and

the victim's statements"; they are "not limited to the crime[s]

of conviction but may consider [reliable sources] in determining

an offender's risk level" (Sex Offender Registration Act: Risk

Assessment Guidelines and Commentary, at 5 [2006]; see People v

Mingo, 12 NY3d 563, 572 [2009]). However, this Court has limited

its application of the latter principle to the assessment of

points in the RAI under "current offenses" and has not applied it

to the offender's "criminal history" (see People v Smith, 128

AD3d 1189, 1189-1190 [2015]; People v Tubbs, 124 AD3d 1094, 1094-

1095 [2015]; People v Snay, 122 AD3d 1012, 1013 [2014], lv denied

24 NY3d 916 [2015]; People v Clavette, 96 AD3d 1178, 1179-1180

[2012], lv denied 20 NY3d 851 [2012]; but see People v Slotman,

112 AD3d 1332, 1333 [2013]). This practice is consistent with

the rules governing statutory construction, that specific

provisions – such as those applicable to the criminal history

factors in the RAI requiring criminal convictions or

adjudications – govern over more general pronouncements (see

McKinneys Cons Laws of NY, Book 1, Statutes § 239 [b]).
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in place to protect the victim by making contact with her,

providing her with cell phones and absconding, taking her out of

state. In assessing defendant's failure to accept

responsibility, County Court reasonably relied upon this repeated

and flagrant postplea conduct, which it characterized as an "open

disregard" and "almost . . . an intentional defiance of court

orders regarding contact with the victim." These actions are

reflective of defendant's poor prospects for rehabilitation and

lack of remorse, as well as his "unwillingness to alter his

behavior" (Sex Offender Registration Act: Risk Assessment

Guidelines and Commentary, at 16 [2006]), which are relevant to

the genuineness of his acceptance of responsibility (see People v

Ford, 25 NY3d 939, 941 [2015]). Under these circumstances,

notwithstanding defendant's earlier guilty plea, the record

supports the court's "finding that defendant failed to genuinely

accept responsibility for his actions" (People v Lerch, 66 AD3d

1088, 1088 [2009], lv denied 13 NY3d 715 [2010]; accord People v

Benson, 132 AD3d 1030, 1031-1032 [2015], lv denied 26 NY3d 913

[2015]). 

County Court also properly relied upon defendant's conduct

in sending correspondence to the victim in violation of the order

of protection in assessing points under risk factor 13 for

"conduct while confined." To the extent that the court, in its

oral ruling, may have also relied upon that jailhouse conduct in

assessing points for failure to accept responsibility under risk

factor 12, we find no error or prejudice given the numerous

independent grounds for the assessment of 10 points under risk

factor 12. 

Accordingly, defendant's total score on the RAI is reduced

to 100, resulting in a presumptive classification as a risk level

two sex offender. While the People request that we remit the

matter to permit them an opportunity to advocate in favor of an

upward departure, they did not make this alternative request in

County Court in response to defendant's stated opposition to the

presumptive classification. Accordingly, the People failed to

preserve this claim and are not entitled to a second opportunity

to propound such argument (see People v Gillotti, 23 NY3d 841,

861 n 5 [2014]).
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McCarthy, Egan Jr., Rose and Mulvey, JJ., concur.

ORDERED that the order is reversed, on the law, without

costs, and defendant is classified as a risk level two sex

offender under the Sex Offender Registration Act.

ENTER:

Robert D. Mayberger

Clerk of the Court