Opinion
No. KA 07-01082.
June 6, 2008.
Appeal from an order of the Oswego County Court (James W. McCarthy, J.), entered June 8, 2007. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
CARL M. DARNALL, FAIRPORT, FOR DEFENDANT-APPELLANT.
DONALD H. DODD, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF COUNSEL), FOR RESPONDENT.
Present: Martoche, J.P., Smith, Centra, Lunn and Pine, JJ.
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 the contention of defendant, the upward departure from his presumptive classification as a level two risk is supported by the requisite clear and convincing evidence ( see People v Howe, 49 AD3d 1302; People v Shattuck, 37 AD3d 1041, lv denied 8 NY3d 811). The record establishes that the offense would have been more severe, resulting in an increased total risk factor score on the risk assessment instrument, if not for the intervention of a third party at the time of the offense. The record also establishes that defendant has admitted peering into windows to watch naked women and that defendant was removed from a treatment program for sexual offenders based on his poor progress. The record thus establishes that "the risk of repeat offense is high and there exists a threat to the public safety," warranting the upward departure (Correction Law § 168- l [c]). We reject the further contention of defendant that County Court erred in denying his request for an adjournment of the SORA hearing. Defendant failed to establish that "there [was] a dispute between the parties concerning the determinations" and that an adjournment was necessary to enable him to obtain material relevant to the determinations (§ 168-n [3]; see People v Di John, 48 AD3d 1302, 1303).