Opinion
1282 KA 19–00153
01-31-2020
The PEOPLE of the State of New York, Respondent, v. Justin C. POTTS, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, 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 he is a level two risk under the Sex Offender Registration Act ( [SORA]; Correction Law § 168 et seq. ). Contrary to defendant's contention, we conclude that County Court properly determined that defendant is a level two risk. It is well settled that a SORA "court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors[,] ... [the court determines that] there exists an aggravating ... factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines" ( People v. Abraham , 39 A.D.3d 1208, 1209, 834 N.Y.S.2d 413 [4th Dept. 2007] [internal quotation marks omitted]; see generally People v. Gillotti , 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). We conclude that the People established the existence of such an aggravating factor by clear and convincing evidence and that the upward departure was warranted under the totality of the circumstances (see People v. Castaneda , 173 A.D.3d 1791, 1793, 103 N.Y.S.3d 722 [4th Dept. 2019], lv denied 34 N.Y.3d 929, 109 N.Y.S.3d 743, 133 N.E.3d 448 [2019] ).
The case summary alleged the existence of a pending federal fraud charge that was based on allegations that defendant had hacked into the private internet accounts of numerous women to obtain nude or semi-nude photographs of the women. The case summary further alleged that he stored images of multiple women in his computer organized in folders using female names. According to the case summary, "[t]here were over 350 individual folders containing well over 1,000 images." It is well settled that a case summary constitutes reliable hearsay and may be used in SORA hearings (see Correction Law § 168–n [3] ; People v. Mingo , 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ). Defendant contends that the court should not have credited the information contained in the case summary, yet he did not present any "compelling evidence" to cause the court to reject the allegations ( Mingo , 12 N.Y.3d at 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 ). Moreover, neither defendant's attorney nor defendant's uncle, who spoke at the hearing, denied the underlying allegations of the pending federal charge. Rather, in contending that the charge amounted to "hacking" and showed nothing more than "a college kid looking around on the internet for sexy pictures," they challenged the import of the allegations, not their veracity. Where, as here, "the defendant does not dispute the facts contained in the case summary, the case summary alone is sufficient to support the court's determination" ( People v. Guzman , 96 A.D.3d 1441, 1442, 945 N.Y.S.2d 904 [4th Dept. 2012], lv denied 19 N.Y.3d 812, 2012 WL 4017731 [2012] ; see People v. Vaillancourt , 112 A.D.3d 1375, 1375–1376, 978 N.Y.S.2d 517 [4th Dept. 2013], lv denied 22 N.Y.3d 864, 2014 WL 1281989 [2014] ).
We further conclude that the upward departure was warranted inasmuch as the aggravating factor establishes an increased risk of sexual recidivism that was not adequately taken into account by the risk assessment instrument (see Abraham , 39 A.D.3d at 1209, 834 N.Y.S.2d 413 ; People v. Shattuck , 37 A.D.3d 1041, 1042, 828 N.Y.S.2d 744 [4th Dept. 2007], lv denied 8 N.Y.3d 811, 834 N.Y.S.2d 720, 866 N.E.2d 1049 [2007] ).