Opinion
09-30-2016
The PEOPLE of the State of New York, Respondent, v. Marc McCABE, Defendant–Appellant.
Law Office Of Mark A. Young, Rochester (Bridget L. Field of Counsel), for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
Law Office Of Mark A. Young, Rochester (Bridget L. Field of Counsel), for Defendant–Appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, DeJOSEPH, AND SCUDDER, JJ.
MEMORANDUM: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ), defendant contends that County Court's written order did not comply with the statutory requirement to set forth findings of fact and conclusions of law on which the court's determination was based (see § 168–n [3 ] ), and that the court improperly granted an automatic override instead of determining whether an upward departure was warranted (see generally People v. Moore, 115 A.D.3d 1360, 1360–1361, 982 N.Y.S.2d 684 ), and thus failed to apply the correct burden of proof for an upward departure from defendant's presumptive risk level. We reject those contentions.
With respect to his first contention, defendant is correct that the written order did not set forth sufficiently detailed conclusions of law (see Correction Law § 168–n[3] ). Nevertheless, we conclude that the court's written findings of fact, coupled with its “oral findings and conclusions [,] ... are clear, supported by the record and sufficiently detailed to permit intelligent review” of the court's determination (People v. Labrake, 121 A.D.3d 1134, 1135, 993 N.Y.S.2d 193 [internal quotation marks omitted]; see People v. Young, 108 A.D.3d 1232, 1233, 969 N.Y.S.2d 372, lv. denied 22 N.Y.3d 853, 2013 WL 5658386, rearg. denied 22 N.Y.3d 1036, 981 N.Y.S.2d 351, 4 N.E.3d 362 ).
We reject defendant's second contention that the court improperly granted an automatic override and thus applied an incorrect burden of proof for an upward departure to a level two risk. Although the court incorrectly described its determination as an override, rather than using the proper nomenclature, i.e., indicating that it was “depart[ing upward] from the presumptive risk level” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [Guidelines], at 4 [2006] ), the record establishes that the court granted an upward departure and applied the correct burden of proof in making its determination (see People v. Howe, 49 A.D.3d 1302, 1302, 856 N.Y.S.2d 320 ; cf. Moore, 115 A.D.3d at 1360–1361, 982 N.Y.S.2d 684 ).
Contrary to defendant's additional contention, “[t]he court's discretionary upward departure [to a level two risk] was based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument” (People v. Sherard, 73 A.D.3d 537, 537, 903 N.Y.S.2d 3, lv. denied 15 N.Y.3d 707, 2010 WL 3583171 ; see People v. Tidd, 128 A.D.3d 1537, 1537, 9 N.Y.S.3d 517, lv. denied 25 N.Y.3d 913, 2015 WL 3971352 ). Although defendant is correct that the risk assessment guidelines “assess 20 points if the victim was 11 through 16 years old and 30 points if the victim was 10 years old or younger” (Guidelines, at 11), in this case there is clear and convincing evidence that those aggravating factors are present to a degree not otherwise taken into account by the risk assessment guidelines, specifically, the quantity and nature of the child pornography used by defendant, the lengthy period of time over which he collected and viewed it, and the extremely young children depicted therein (see generally People v. Burke, 139 A.D.3d 1268, 1270, 31 N.Y.S.3d 675 ; People v. Rotunno, 117 A.D.3d 1019, 1019, 986 N.Y.S.2d 344, lv. denied 24 N.Y.3d 902, 2014 WL 4357489 ). Here, the People presented evidence that defendant collected more than 600 images depicting sexual activity involving children as young as three years old, he had been collecting those images over several years, and he admitted that he viewed images depicting sexual activity with children so young that they were still wearing diapers.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.