THE UNLAWFUL SURVEILLANCE CONVICTION DID NOT INVOLVE “SEXUAL CONTACT” AS DEFINED BY THE PENAL LAW; THEREFORE THE 20 POINT ASSESSMENT FOR “SEXUAL CONTACT” WAS ERROR (THIRD DEPT).

The Third Department, reversing (modifying) County Court, determined the risk factors requiring “sexual contact” and a “prior felony or sex crime” were not supported:

County Court erred in assessing points under risk factors 4 and 10. The assessment of points under risk factor 4 is warranted where a defendant has engaged in “either (i) two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours, or (ii) three or more acts of sexual contact over a period of at least two weeks” … . For purposes of risk classification, the Penal Law definition of terms is used … . The record does not reflect that defendant’s crimes of conviction, for unlawful surveillance in the second degree … , involved any form of sexual contact … . In the absence of any record evidence that defendant engaged in sexual contact with any victim, 20 points should not have been assessed under risk factor 4 … . Likewise, the record lacks any evidence that defendant had a “prior felony or sex crime” within three years of the unlawful surveillance sex offenses and, thus, the court erred in assessing 10 points under risk factor 10 … . People v Wassilie, 2022 NY Slip Op 00103, Third Dept 1-6-22