Appeal from an order of the Criminal Court of the City of New York, Kings County (Dena E. Douglas, J.), entered September 6, 2010. The order, after a hearing, designated defendant a level two sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs.

Defendant appeals from an order determining that he is a level two sex offender pursuant to the Sex Offender Registration Act (SORA) (Correction Law article 6-C), based upon a total score of 90 on the risk assessment instrument. We reject defendant's contention that the Criminal Court erred in assessing 15 points against him under risk factor 14, for release without supervision. The evidence presented at the hearing established that defendant was released without probation or parole supervision (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 17 [2006]).

Defendant further contends that the Criminal Court erred in assessing a total of 15 points under risk factor 2 on the ground that in assessing 10 points for "contact under clothing," the court could not assess an additional 5 points for "contact over clothing." The Sex Offender Risk Assessment Guidelines and Commentary (at 6) provides that "[i]n screening the categories in the Current Offense[s] section of the instrument, the Board or court should look to the most serious [*2]wrongdoing in each category." At the SORA hearing, defendant did not object to the 10 points assessed against him under risk factor 2 for touching the victim under her clothing. In view of the foregoing, 5 points should be reduced from the total risk assessment score of 90. However, the 5-point reduction does not alter defendant's presumptive risk level.

Accordingly, the order designating defendant a level two sex offender is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: September 05, 2013