Opinion
2014-07-3
The PEOPLE of the State of New York, Respondent, v. Robert D. SCOTT, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.). Contrary to defendant's contention, County Court properly agreed with the recommendation of the Board of Examiners of Sex Offenders that an upward departure from the presumptive risk level was warranted based upon aggravating factors not taken into account by the risk assessment guidelines, i.e., those relating to his risk of re-offense. Contrary to defendant's contention, the court properly concluded that the guidelines did not adequately take into account his lack of insight into the inappropriateness of his conduct ( see People v. Cruz, 111 A.D.3d 685, 685–686, 974 N.Y.S.2d 538,lv. denied22 N.Y.3d 860, 2014 WL 148759), and that defendant's California felony conviction, while not a “sex offense” under SORA ( see § 168–a [2][d] [i], [ii] ), nevertheless had a sexual component ( see People v. Faver, 113 A.D.3d 662, 663, 978 N.Y.S.2d 690,lv. denied22 N.Y.3d 865, 2014 WL 1316185;People v. Galindo, 107 A.D.3d 603, 604, 967 N.Y.S.2d 726). In addition, the evidence supports the court's conclusion that those factors are causally related to defendant's risk of re-offense ( see People v. Abraham, 39 A.D.3d 1208, 1209, 834 N.Y.S.2d 413). Finally, we conclude that defendant received effective assistance of counsel at the SORA hearing ( see People v. Russell, 115 A.D.3d 1236, 1236, 982 N.Y.S.2d 271).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.