Opinion
119 KA 18–00869
01-31-2020
The PEOPLE of the State of New York, Respondent, v. Brandon DECAPUA, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
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, Supreme Court did not abuse its discretion in granting the People's request for an upward departure from his presumptive classification as a level two risk. " ‘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. Hackrott, 170 A.D.3d 1646, 1647, 94 N.Y.S.3d 907 (4th Dept. 2019), lv denied 33 N.Y.3d 908, 103 N.Y.S.3d 361, 127 N.E.3d 319 [2019] ). Here, the court made its determination based on "[s]tatements in a presentence report and case summary[, which] constitute ‘reliable hearsay’ upon which a court may properly rely in making an upward departure" ( 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, 16 N.Y.S.3d 517, 37 N.E.3d 1160 [2015] ). We conclude that the court's determination to grant an upward departure was based on clear and convincing evidence of aggravating factors not adequately accounted for by the risk assessment guidelines, including evidence of defendant's history of sexually aggressive behavior and his diagnosis of, inter alia, impulse control disorder, which together increased his risk of recidivism (see generally People v. Tatner, 149 A.D.3d 1595, 1595–1596, 53 N.Y.S.3d 445 (4th Dept. 2017), lv denied 29 N.Y.3d 916, 64 N.Y.S.3d 666, 86 N.E.3d 558 [2017] ; People v. Kettles, 39 A.D.3d 1270, 1271, 834 N.Y.S.2d 435 (4th Dept. 2007), lv denied 9 N.Y.3d 803, 840 N.Y.S.2d 763, 872 N.E.2d 876 [2007] ).