Opinion
514907.
10-02-2014
The PEOPLE of the State of New York, Respondent, v. David L. LABRAKE, Appellant.
Albert F. Lawrence, Greenfield Center, for appellant. Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Albert F. Lawrence, Greenfield Center, for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Before: PETERS, P.J., STEIN, GARRY, EGAN JR. and CLARK, JJ.
Opinion
STEIN, J. Appeal from an order of the County Court of St. Lawrence County (Richards, J.), entered April 2, 2012, which classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act.
Defendant was convicted in 2010 of possession of a sexual performance by a child, and was sentenced to a prison term of 1 to 3 years. As his release from prison neared, the Board of Examiners of Sex Offenders prepared a risk assessment instrument in accordance with the Sex Offender Registration Act (see Correction Law art. 6–C) that presumptively classified defendant as a risk level I sex offender. County Court conducted a hearing, after which it assigned 30 additional points under risk factor 3 (number of victims). While defendant's overall score remained in the risk level I category, County Court found an upward departure to be warranted and classified him as a risk level II sex offender. Defendant now appeals, and we affirm.
Defendant initially points out that County Court did not issue the required written order setting forth its findings of fact and conclusions of law. Remittal is not required, however, as County Court made “oral findings and conclusions that ‘are clear, supported by the record and sufficiently detailed to permit intelligent review’ ” (People v. Hemmes, 110 A.D.3d 1387, 1388, 973 N.Y.S.2d 875 [2013], quoting People v. Carter, 106 A.D.3d 1202, 1203, 965 N.Y.S.2d 642 [2013] ; see Correction Law § 168–n[3] ).
Turning to the merits, defendant contends that the record does not contain clear and convincing evidence to support “the existence of an aggravating factor that was not adequately taken into account in the” risk assessment instrument such as to warrant an upward departure in the risk level (People v. Gauthier, 100 A.D.3d 1223, 1225, 954 N.Y.S.2d 240 [2012] ; see People v. Gillotti, 23 N.Y.3d 841, 851, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The People here submitted reliable hearsay—in the form of the case summary, a statement to police made by defendant's girlfriend and admissions made by defendant in a federal plea agreement—establishing that defendant was a longstanding consumer of child pornography who had possessed thousands of images and videos at one point (see People v. Carter, 106 A.D.3d at 1203–1204, 965 N.Y.S.2d 642 ; People v. Christie, 94 A.D.3d 1263, 1263, 942 N.Y.S.2d 664 [2012], lv. denied 19 N.Y.3d 808, 2012 WL 2428544 [2012] ). The evidence further revealed that some of that material was extremely graphic and depicted heinous acts against young children. Defendant admitted that he had an addiction to pornography and that he had been viewing it for nearly two decades. Inasmuch as this proof showed that the presumptive risk level did not adequately reflect the duration and degree of defendant's child pornography habit, County Court providently exercised its discretion in granting an upward departure (see People v. Gillotti, 23 N.Y.3d at 847–849, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Rotunno, 117 A.D.3d 1019, 986 N.Y.S.2d 344 [2014], lv. denied 24 N.Y.3d 902, 2014 WL 4357489 [Sept. 4, 2014] ; People v. Muirhead, 110 A.D.3d 1386, 1387, 973 N.Y.S.2d 873 [2013], lv. denied 23 N.Y.3d 906, 2014 WL 2892236 [2014] ).
ORDERED that the order is affirmed, without costs.
PETER, P.J., GARRY, EGAN JR. and CLARK, JJ., concur.