Opinion
2013-03-15
The PEOPLE of the State of New York, Respondent, v. Stephen M. COLLINS, Defendant–Appellant.
Leanne Lapp, Public Defender, Canandaigua (John E. Tyo of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Jason A. MacBride of Counsel), for Respondent.
Leanne Lapp, Public Defender, Canandaigua (John E. Tyo of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Jason A. MacBride of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.). Based on the risk assessment instrument prepared by the Board of Examiners of Sex Offenders, defendant was presumptively classified as a level one risk based on his total risk factor score. Following a SORA hearing, however, County Court determined that an upward departure to a level two risk was warranted. We reject defendant's contention that the court's upward departure is not supported by the requisite clear and convincing evidence ( see § 168–n [3] ). The presentence report contained evidence that defendant had frequently downloaded pictures of naked young girls onto his home computer, and the mental health therapist who evaluated defendant for SORA classification purposes diagnosed him as a pedophile. A “diagnosis [of pedophilia] alone would support a finding that defendant poses a serious risk to public safety, justifying the upward departure from the presumptively correct classification of defendant as a level [one] risk” ( People v. Seils, 28 A.D.3d 1158, 1158, 813 N.Y.S.2d 594,lv. denied7 N.Y.3d 709, 822 N.Y.S.2d 483, 855 N.E.2d 799;see People v. Zehner, 24 A.D.3d 826, 827, 804 N.Y.S.2d 852 n.). In any event, we conclude that “defendant's psychological abnormalities are causally related to any risk of reoffense, and thus that there is clear and convincing evidence of special circumstances to support the court's upward departure from defendant's presumptive risk level” ( People v. Mallaber, 59 A.D.3d 989, 990, 874 N.Y.S.2d 340,lv. denied12 N.Y.3d 710, 881 N.Y.S.2d 19, 908 N.E.2d 927).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.