Opinion
No. KA 06-03427.
March 14, 2008.
Appeal from an order of the Ontario County Court (Craig J. Doran, J.), entered November 21, 2006. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
CHRISTINE M. COOK, SYRACUSE, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR OF COUNSEL), FOR RESPONDENT.
Present: Martoche, J.P., Smith, Peradotto, Pine and Gorski, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court's upward departure from his presumptive risk level as a level two risk is not supported by clear and convincing evidence. We reject that contention ( see People v Gandy, 35 AD3d 1163; People v Sells, 28 AD3d 1158, lv denied 7 NY3d 709). "A court may make an upward departure from a presumptive risk level when, 'after consideration of the indicated factors . . . [,] there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines'" ( People v Cruz, 28 AD3d 819, 819; see People v Foley, 35 AD3d 1240). We agree with defendant that the court erred in considering his "chronic alcoholism" as a factor supporting the upward departure from the presumptive risk level because that factor was already taken into account by the risk assessment instrument ( see People v Abraham, 39 AD3d 1208, 1209; People v Foley, 35 AD3d 1240). Nevertheless, we conclude that the court properly relied upon the case summary prepared by the Board of Examiners of Sex Offenders, which constitutes reliable hearsay ( see People v Roman, 41 AD3d 1288, lv denied 9 NY3d 809), together with the facts of the underlying conviction and defendant's prior history of child sexual abuse, in determining that an upward departure to a level three risk was warranted ( see Correction Law § 168-Z [6] [c]; § 168-n [3]).