The Fourth Department, reversing County Court, determined defendant’s juvenile delinquency adjudication should not have been used to calculate his risk level under risk factor 9:
Defendant was assessed 15 points under risk factor 9 for a prior crime as a juvenile delinquent, and the court, relying on People v Catchings (56 AD3d 1181 … , rejected defendant’s challenge to the assessment of points under risk factor 9. As we recently held in People v Brown (148 AD3d 1705, ___), however, a juvenile delinquency adjudication may not be considered a crime for purposes of assessing points in a SORA determination, and Catchings should no longer be followed to that extent. Consequently, we conclude that the court erred in considering defendant’s juvenile delinquency adjudication in assessing 15 points under risk factor 9.
Removing the improperly assessed points under risk factor 9 renders defendant a presumptive level two risk. Under the circumstances of this case, we remit the matter to County Court for further proceedings to determine whether an upward departure is warranted … . People v Gibson, 2017 NY Slip Op 03355, 4th Dept 4-28-17
CRIMINAL LAW (SORA, JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9)/SEX OFFENDER REGISTRATION ACT (SORA) (JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9)/JUVENILE DELINQUENCY ADJUDICATION (SORA, JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9)