Opinion
09-28-2017
The PEOPLE of the State of New York, Respondent, v. Andrew C. DARRAH, Appellant.
Danielle Neroni Reilly, Albany, for appellant. Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Danielle Neroni Reilly, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and PRITZKER, JJ.
LYNCH, J.
Appeal from an order of the County Court of Saratoga County (Murphy, J.), entered March 17, 2016, which classified defendant as a risk level two sex offender and a sexually violent offender pursuant to the Sex Offender Registration Act.
Defendant pleaded guilty to sexual abuse in the first degree and was sentenced to six months in jail and 10 years of probation. County Court thereafter classified defendant as a risk level two sex offender and a sexually violent offender (105 points) pursuant to the Sex Offender Registration Act (see Correction Law art. 6–C). Defendant now appeals.
"The People must establish the proper risk level classification by clear and convincing evidence, which may include reliable hearsay such as the risk assessment instrument, case summary, presentence investigation report and statements provided by the victim to police" ( People v. Good, 88 A.D.3d 1037, 1037, 930 N.Y.S.2d 495 [2011] [citations omitted], lv. denied 18 N.Y.3d 802, 2011 WL 6350548 [2011] ; see People v. Belile, 108 A.D.3d 890, 890 [2013], lv. denied 22 N.Y.3d 853, 2013 WL 5658049 [2013] ). We reject defendant's challenge to County Court's assessment of 25 points under risk factor 2, sexual conduct with the victim. In assessing the points, County Court properly considered statements by the 12–year–old victim to her mother and to a police investigator that defendant engaged in oral sexual conduct with her (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 9 [2006]; People v. Willette, 67 A.D.3d 1259, 1261, 889 N.Y.S.2d 299 [2009], lv. denied 14 N.Y.3d 704, 2010 WL 606359 [2010] ; see also Penal Law § 130.00[2][a] ).
We also reject defendant's contention that County Court erred in assessing him 20 points under risk factor 3 for having two victims. "County Court was not limited to the crime to which defendant pleaded guilty but could, instead, consider reliable hearsay evidence in the record, including evidence that defendant engaged in criminal conduct against one child in the presence of a second child" ( People v. Clavette, 96 A.D.3d 1178, 1179–1180, 946 N.Y.S.2d 310 [2012] [internal quotation marks and citations omitted], lv. denied 20 N.Y.3d 851, 2012 WL 5845583 [2012] ; see People v. Whyte, 89 A.D.3d 1407, 1408, 933 N.Y.S.2d 459 [2011] ; People v. Milton, 55 A.D.3d 1073, 1073, 866 N.Y.S.2d 795 [2008] ). Inasmuch as the record reflects that the victim's younger sister was present during defendant's criminal conduct,
County Court's assessment of 20 points under risk factor 3 was justified (see People v. Clavette, 96 A.D.3d at 1180, 946 N.Y.S.2d 310 ; People v. Whyte, 89 A.D.3d at 1408, 933 N.Y.S.2d 459 ). Further, we find no merit to defendant's contention that he should not have been assessed five points under risk factor 9 because his prior crimes were nonsexual in nature and occurred several years prior to his sex crime, given that the assessment of five points in this category is appropriate if a defendant "has any criminal history other than a felony or sex crime" (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 13 [2006] [emphasis added] ).
We agree, however, with defendant that remittal is required with respect to his request for a downward departure. At the hearing, defendant requested a downward departure to a classification of a risk level one sex offender based upon, among other things, psychological evaluations done on his behalf. In classifying defendant as a risk level two sex offender, County Court did not address defendant's request for a downward departure in the written order, as required by Correction Law § 168–n(3), or at the hearing, "precluding meaningful appellate review of the propriety of the court's risk level assessment" ( People v. Miranda, 24 A.D.3d 909, 911, 806 N.Y.S.2d 729 [2005] ; see People v. Filkins, 107 A.D.3d 1069, 1070–1071, 968 N.Y.S.2d 621 [2013] ; People v. Burke, 68 A.D.3d 1175, 1177, 889 N.Y.S.2d 756 [2009] ). Accordingly, we remit the matter to County Court for a disposition that complies with the statutory requirements (see People v. Filkins, 107 A.D.3d at 1071, 968 N.Y.S.2d 621 ; People v. Burke, 68 A.D.3d at 1177, 889 N.Y.S.2d 756 ).
ORDERED that the order is reversed, on the law, without costs, and matter remitted to the County Court of Saratoga County for further proceedings not inconsistent with this Court's decision.
McCARTHY, J.P., EGAN JR., DEVINE and PRITZKER, JJ., concur.