Opinion
1004 KA 17–01203
11-08-2019
The PEOPLE of the State of New York, Respondent, v. Jessica D. HUBER, Defendant–Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, 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 she is a level two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). We reject defendant's contention that County Court abused its discretion in granting the People's request for an upward departure to 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. 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 court properly granted the People's request for an upward departure based on clear and convincing evidence of certain aggravating factors, including that defendant has mental health issues that are causally related to her risk of recidivism (see People v. Collins, 104 A.D.3d 1220, 1221, 960 N.Y.S.2d 579 [4th Dept. 2013], lv denied 21 N.Y.3d 855, 2013 WL 1876251[2013] ; People v. Abraham, 39 A.D.3d 1208, 1209, 834 N.Y.S.2d 413 [4th Dept. 2007] ; cf. People v. Robinson, 160 A.D.3d 1441, 1442, 72 N.Y.S.3d 886 [4th Dept. 2018] ), particularly her diagnosis of hypersexuality (see Collins, 104 A.D.3d at 1221, 960 N.Y.S.2d 579 ; see also People v. Tatner, 149 A.D.3d 1595, 1595, 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] ). We have considered defendant's remaining contention and conclude that it does not require reversal or modification of the order.