Opinion
1269 KA 16-02266.
11-09-2017
The PEOPLE of the State of New York, Respondent, v. Chad J. COLSRUD, Defendant–Appellant.
Rosemarie Richards, South New Berlin, for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
Rosemarie Richards, South New Berlin, for Defendant–Appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:
On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant contends that County Court erred in assessing points under the risk factor for failure to accept responsibility for his actions. We reject that contention. In statements to the probation officer preparing the presentence report, defendant denied committing the offense and indicated that the victim must have drugged him. We conclude that those statements "constitute clear and convincing evidence of defendant's failure to accept responsibility, thus justifying the assessment of 10 additional points for that risk factor" ( People v. Urbanski, 74 A.D.3d 1882, 1883, 903 N.Y.S.2d 648 [4th Dept.2010], lv. denied 15 N.Y.3d 707, 2010 WL 3583295 [2010] ; see People v. Baker, 57 A.D.3d 1472, 1473, 871 N.Y.S.2d 537 [4th Dept.2008], lv. denied 12 N.Y.3d 706, 879 N.Y.S.2d 53, 906 N.E.2d 1087 [2009] ).
We reject defendant's further contention that the court erred in granting the People's request for an upward departure from his presumptive classification as a level two risk. " ‘The court's discretionary upward departure [to a level three risk] was based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument’ " ( People v. Tidd, 128 A.D.3d 1537, 1537, 9 N.Y.S.3d 517 [4th Dept.2015], lv. denied 25 N.Y.3d 913, 2015 WL 3971352 [2015] ). The People established by clear and convincing evidence that defendant had been convicted of endangering the welfare of a child, and that such conviction arose from an incident occurring contemporaneously with the acts that form the basis of the indictment herein. That contemporaneous conviction provides the basis for an upward departure inasmuch it is " ‘indicative that the offender poses an increased risk to public safety’ " ( People v. Ryan, 96 A.D.3d 1692, 1693, 947 N.Y.S.2d 869 [4th Dept.2012], lv. denied 20 N.Y.3d 929, 957 N.Y.S.2d 688, 981 N.E.2d 284 [2012], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 14 [2006]; see People v. Neuer, 86 A.D.3d 926, 927, 926 N.Y.S.2d 793 [4th Dept.2011], lv. denied 17 N.Y.3d 716, 2011 WL 5573990 [2011] ; People v. Vasquez, 49 A.D.3d 1282, 1284–1285, 853 N.Y.S.2d 767 [4th Dept.2008] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.