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DEFENDANT’S CONVICTION OF ATTEMPTED ENDANGERING THE WELFARE OF A CHILD DID NOT MEET THE CRITERIA FOR THE ASSESSMENT OF 30 POINTS UNDER RISK FACTOR 9; DEFENDANT WAS THEREFORE A PRESUMPTIVE LEVEL ONE; HAD THE PEOPLE KNOWN DEFENDANT WAS PRESUMPTIVE LEVEL ONE THEY WOULD HAVE SOUGHT AN UPWARD DEPARTURE; MATTER REMITTED FOR A NEW DETERMINATION (SECOND DEPT).

The Second Department determined defendant’s conviction of attempted endangering the welfare of a child did not meet the criteria for assessing 30 points under risk factor 9, and therefore defendant should have been assessed at a presumptive level one. The People argued that had the defendant been assessed at a presumptive level one they would have sought an upward department based on aggravating factors. The matter was remitted for a new determination:

Risk factor 9 requires the assessment of 30 points where “[t]he offender has a prior criminal history that includes a conviction or adjudication for the class A felonies of Murder, Kidnaping or Arson, a violent felony, a misdemeanor sex crime, or endangering the welfare of a child, or any adjudication for a sex offense” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [hereinafter Guidelines], risk factor 9 [2006]). Here, as the defendant contends, the Supreme Court should not have assessed 30 points under risk factor 9 based on his prior conviction for attempted endangering the welfare of a child inasmuch as that conviction was neither for a felony, nor for a “sex offense” (Correction Law § 168-a[2]), “nor a conviction for actually endangering the welfare of a child” … . Accordingly, only 5 points could be assigned under risk factor 9 for “[p]rior history/no sex crimes or felonies,” resulting in a total score of less than 70 points, a presumptive risk level one … . People v Lewis, 2019 NY Slip Op 09045, Second Dept 12-18-19

 

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