Opinion
598 KA 17–01093
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Shane CARDINALE, Defendant–Appellant.
ADAM H. VANBUSKIRK, AUBURN, FOR DEFENDANT–APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (AMANDA L. CASSELMAN OF COUNSEL), FOR RESPONDENT.
ADAM H. VANBUSKIRK, AUBURN, FOR DEFENDANT–APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (AMANDA L. CASSELMAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ) after a conviction arising from his possession of child pornography on his computer. The Board of Examiners of Sex Offenders determined that defendant is presumptively a level one risk, and found that there was no clear and convincing evidence to warrant an upward departure from that risk level. At the request of the People, County Court recalculated defendant's presumptive risk level, assigning points for risk factor 7 because defendant's relationship with the victim was that of a stranger, thereby bringing defendant to a risk factor score of 80, which is a level two risk. Although not requested by the People, the court sua sponte ordered an upward departure to a level three risk. That was error.
"It is well settled that a court may grant an upward departure from a sex offender's presumptive risk level when the People establish, by clear and convincing evidence ..., the existence of ‘an aggravating ... factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [risk assessment] guidelines’ " ( People v. Symonds, 147 A.D.3d 1325, 1325–1326, 46 N.Y.S.3d 346 [4th Dept. 2017], lv denied 29 N.Y.3d 909, 2017 WL 2369388 [2017] ). We agree with defendant that the upward departure is not supported by the requisite clear and convincing evidence (see People v. Hayward, 52 A.D.3d 1243, 1244, 860 N.Y.S.2d 344 [4th Dept. 2008] ), and we therefore modify the order accordingly.
Contrary to defendant's further contention, he was properly classified as a level two risk after the assessment of points for risk factor 7 (see People v. Johnson, 11 N.Y.3d 416, 420–421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ). We have examined defendant's remaining contention and conclude that it is without merit.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by determining that defendant is a level two risk pursuant to the Sex Offender Registration Act and as modified the order is affirmed without costs.