                           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]).
                              -4-                521725

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]).
                              -5-                521725

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]).
                              -6-                  521725

     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
