People v. Perkins

128 A.D.3d 1036, 8 N.Y.S.3d 592

Opinion

Appeal by the defendant from an order of the Supreme Court, Kings County (Riviezzo, J.), dated October 16, 2012, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is reversed, on the law, without costs or disbursements, and the defendant is designated a level two sex offender.

Based upon the point assessment by the Board of Examiners of Sex Offenders, the defendant was presumptively to be designated a level two sex offender (see People v Pettigrew, 14 NY3d 406, 409 [2010]). The Supreme Court upwardly departed from the defendant’s presumptive risk level, based upon the defendant’s admission at the trial of the underlying criminal charge that he contemplated having sexual intercourse with the victim, but decided against it because he did not have a condom. The fact that the defendant contemplated committing a crime and decided against it, without interference from a third party, was insufficient to warrant an upward departure from the defendant’s presumptive risk level (see People v DeDona, 102 AD3d 58, 69 [2012]; cf. People v Scott, 85 AD3d 890, 891 [2011]; People v Mudd, 43 AD3d 1128 [2007]).

The defendant’s remaining contentions are without merit.

Accordingly, the defendant should have been designated a level two sex offender. Skelos, J.P., Austin, Miller and Hinds-Radix, JJ., concur.