People v. Mollenkopf

54 A.D.3d 1136, 864 N.Y.S.2d 215

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 25, 2008
• Status: Published

Opinion

Kavanagh, J.

Appeal from an order of the County Court of Madison County (DiStefano, J.), entered July 11, 2007, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

In 2005, defendant pleaded guilty to attempted sodomy in the second degree and was sentenced as a second felony offender to a prison term of 2 to 4 years. In anticipation of defendant’s release from custody, the Board of Examiners of Sex Offenders gave defendant a risk assessment score of 100, thereby presumptively classifying him as a risk level two sex offender, but recommended an upward departure to risk level three status. Following a hearing, County Court assigned defendant an additional 20 points under the category of relationship with the victim, thus raising his risk assessment score to 120 and placing him in the risk level three range. As a result, the court classified defendant as a risk level three sex offender.

Defendant’s sole contention on this appeal is that County Court erred in assigning him 20 risk assessment points based upon his relationship with the victim, the absence of which would afford him risk level two status. We disagree. Although the record contains evidence that defendant had long known the victim, was friends with the victim’s father and lived with the victim’s aunt, the case summary and the victim’s sworn statements provide clear and convincing evidence that defendant cultivated his relationship with the victim in order to sexually abuse him (see People v Grosfeld, 35 AD3d 692, 693 [2006]). Accordingly, we conclude that County Court appropriately assigned 20 points in connection with the category of relationship with the victim.

Cardona, EJ., Carpinello, Rose and Kane, JJ., concur. Ordered that the order is affirmed, without costs.