Juvenile Delinquency Adjudications Can Not Be Considered in the Criminal History Categories of a Risk Assessment Instrument (RAI)—However the Adjudications Can Be Considered When Deciding Whether to Depart from the Recommended Risk Level

The Third Department, in a full-fledged opinion by Justice Rose, indicated its prior rulings should not be followed and determined that juvenile delinquency adjudications may not be considered under risk factors 8 and 9 (criminal history) for the purpose of assessing points in the risk assessment instrument (RAI). However the adjudications may be considered in determining whether to depart from the recommended risk level:

Relying on People v Campbell (98 AD3d 5 [2d Dept 2012], lv denied 20 NY3d 853 [2012]), defendant contended that Family Ct Act § 381.2 (1) precluded the use of the juvenile delinquency adjudication and, without the 30 points for criminal history, defendant would be presumptively classified as a risk level I sex offender. County Court, citing our previous decisions in People v Pride (37 AD3d 957 [2007], lv denied 8 NY3d 812 [2007]) and People v Dort (18 AD3d 23 [2005], lv denied 4 NY3d 885 [2005]), denied defendant’s challenge to the 30-point assessment and classified defendant as a risk level II sex offender. Defendant appeals.

We reverse. We agree with the holding of People v Campbell (supra) that the Board “exceeded its authority by adopting that portion of the [Sex Offender Registration Act] Guidelines which includes juvenile delinquency adjudications in its definition of crimes for the purpose of determining a sex offender’s criminal history” (id. at 12; see Family Ct Act § 380.1 [1]…). Contrary to the People’s argument, the fact that the points at issue in Campbell were assessed under risk factor 8 of the RAI does not require a different conclusion because both risk factor 8 and risk factor 9 fall within the criminal history category of the RAI. To the extent that our prior decisions suggest that juvenile delinquency adjudications may be considered crimes for purposes of the RAI, we note that the conflict between the Guidelines and the Family Ct Act was not raised in those cases and they should no longer be followed. Our ruling is limited, however, to precluding the use of juvenile delinquency adjudications to assess points for criminal history under the RAI, and we do not hold that the facts underlying a juvenile delinquency adjudication may not be considered when determining whether to depart from the recommended risk level … . People v Shaffer, 2015 NY Slip Op 03586, 3rd Dept 4-30-15