Opinion
333 KA 17–00622
03-22-2019
The PEOPLE of the State of New York, Respondent, v. Joseph HACKROTT, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND CURRAN, 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, County Court properly assessed 15 points under risk factor 11 for a history of drug or alcohol abuse inasmuch as " ‘[t]he statements in the case summary ... with respect to defendant's substance abuse constitute reliable hearsay supporting the court's assessment of points under [that] risk factor’ " ( People v. Kunz , 150 A.D.3d 1696, 1696, 53 N.Y.S.3d 788 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 64 N.Y.S.3d 666, 86 N.E.3d 558 [2017] ; see People v. Jackson , 134 A.D.3d 1580, 1580, 22 N.Y.S.3d 749 [4th Dept. 2015] ). Furthermore, despite defendant's purported abstinence while incarcerated and while on "federal probation," it is well established that a defendant's "abstinence while incarcerated ‘is not necessarily predictive of his behavior when [he is] no longer under such supervision’ " ( Jackson , 134 A.D.3d at 1580–1581, 22 N.Y.S.3d 749 ).
We reject defendant's further contention that the court abused its discretion in granting the People's request for an upward departure to a level three 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. Cardinale , 160 A.D.3d 1490, 1490–1491, 76 N.Y.S.3d 708 [4th Dept. 2018] [internal quotation marks omitted] ). Here, we conclude that the determination to grant an upward departure was based on clear and convincing evidence of certain aggravating factors, including, inter alia, "the quantity and nature of the child pornography used by the defendant" ( People v. McCabe , 142 A.D.3d 1379, 1380, 38 N.Y.S.3d 352 [4th Dept. 2016] ; see People v. Eiss , 158 A.D.3d 905, 906–907, 70 N.Y.S.3d 604 [3d Dept. 2018], lv denied 31 N.Y.3d 907, 79 N.Y.S.3d 97, 103 N.E.3d 1244 [2018] ; People v. Sczerbaniewicz , 126 A.D.3d 1348, 1349, 5 N.Y.S.3d 644 [4th Dept. 2015] ), as well as defendant's attempt to arrange a sexual encounter with a minor and the evidence that he asked other people for advice about molesting an underage family member (see People v. Gosek , 98 A.D.3d 1309, 1310, 951 N.Y.S.2d 790 [4th Dept. 2012] ).