Opinion
521731.
05-12-2016
The PEOPLE of the State of New York, Respondent, v. Daniel DAVIS, Appellant.
John M. Hillman, Valatie, for appellant. Michael Cozzolino, Special Prosecutor, Claverack, for respondent.
John M. Hillman, Valatie, for appellant.
Michael Cozzolino, Special Prosecutor, Claverack, for respondent.
Before: LAHTINEN, J.P., McCARTHY, GARRY, ROSE and MULVEY, JJ.
Opinion
LAHTINEN, J.P. Appeal from an order of the County Court of Columbia County (Koweek, J.), entered July 22, 2015, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
In 2013, defendant pleaded guilty to attempted sexual abuse in the first degree, a felony, stemming from his sexual contact at age 60 with a 10–year–old child, and was sentenced to one year in jail. After defendant's release from jail, the People submitted a risk assessment instrument (hereinafter RAI) that presumptively classified him as a risk level I sex offender, in accordance with the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA] ). The People requested a risk level III assessment as an upward departure, as recommended in the case summary, based upon defendant's 30–year criminal history. After a hearing, County Court agreed and classified defendant as a risk level III sex offender and a predicate sex offender (see Correction Law § 168–a [7 ][c] ). Defendant appeals.
Previously, this Court dismissed defendant's appeal from the SORA classification because County Court's order had not been properly entered (130 A.D.3d 1131, 10 N.Y.S.3d 918 [2015] ). The record reflects that the order has now been properly entered (see CPLR 2220[a] ).
An upward departure from a presumptive risk level classification may be ordered where the People adduce clear and convincing evidence demonstrating that an aggravating factor exists that was not otherwise adequately taken into account by the offender's score under the risk assessment guidelines (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). If the People do so, the SORA court makes a discretionary determination whether the overall circumstances warrant a departure to prevent an underassessment of the offender's risk of sexual recidivism and dangerousness (see id.; People v. Labrake, 121 A.D.3d 1134, 1135, 993 N.Y.S.2d 193 [2014] ). Here, the RAI assessed a total of 60 points against defendant —30 points under risk factor 5 due to the victim being age 10 or less and 30 points for criminal history under risk factor 9 for his “ [p]rior violent felony or misdemeanor sex crime or endangering welfare of a child.” Defendant does not challenge the assessment of points under the RAI but, rather, argues that the upward departure was not supported by facts that were not already taken into account in scoring the RAI. We disagree.
To the extent that the People now argue that defendant should have been assessed 15 points under risk factor 14 because he was released without supervision, making him a presumptive risk level II sex offender, this argument was not raised at the hearing or in the case summary and, thus, it is not preserved for this Court's review (see People v. Charache, 9 N.Y.3d 829, 830, 841 N.Y.S.2d 223, 873 N.E.2d 267 [2007] ).
To that end, defendant's criminal history included his 1981 conviction for endangering the welfare of a child, which provided a basis for the assessment of 30 points under risk factor 9. However, the presentence report (hereinafter PSR) reflects a criminal history of additional sexually-related misdemeanor convictions, including public lewdness in 1981 and endangering the welfare of a child and sexual abuse in the third degree (based upon lack of consent) in 1998. Under the SORA guidelines, endangering the welfare of a child is considered a sex crime “because it generally involves sexual misconduct, especially when it is part of a plea bargained disposition” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 14 [2006] ). Defendant did not dispute the characterization by the Probation Department and the People that his misdemeanor crimes had a sexual component (see People v. Freeman, 85 A.D.3d 1335, 1336, 925 N.Y.S.2d 254 [2011] ; People v. Brown, 45 A.D.3d 1123, 1124, 846 N.Y.S.2d 678 [2007], lv. denied 10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010 [2008] ). We find that County Court properly relied upon the uncontested PSR, RAI and case summary, which constitute reliable hearsay regarding defendant's past history of misconduct and satisfied the People's burden (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] ; People v. Adam, 126 A.D.3d 1169, 1170, 5 N.Y.S.3d 592 [2015], lv. denied 25 N.Y.3d 911, 2015 WL 3618529 [2015] ; People v. Muirhead, 110 A.D.3d 1386, 1387, 973 N.Y.S.2d 873, lv. denied 23 N.Y.3d 906, 2014 WL 2892236 [2014] ; People v. Curthoys, 77 A.D.3d 1215, 1216, 909 N.Y.S.2d 824 [2010] ). Under these circumstances, the court's determination that the RAI score did not adequately reflect defendant's protracted and escalating criminal history and high risk of reoffending, and that an upward departure to a risk level III determination was warranted, are supported by the requisite clear and convincing evidence (see People v. Muirhead, 110 A.D.3d at 1387, 973 N.Y.S.2d 873 ; People
The PSR also lists under defendant's legal history a 1984 arrest for sexual abuse in the first degree, a felony, for which he served three years of probation, but it does not reflect the disposition for that charge. The Probation Department characterized this as a “previous conviction for a felony,” which would have permitted a presumptive override to a risk level III designation (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 3–4, 19 [2006] ). This matter was not addressed in the case summary or by the parties or County Court at the SORA hearing.
v. Fiol, 49 A.D.3d 834, 834–835, 854 N.Y.S.2d 219 [2008], lv. denied 10 N.Y.3d 713, 861 N.Y.S.2d 273, 891 N.E.2d 308 [2008] ; People v. Thornton, 34 A.D.3d 1026, 1027, 824 N.Y.S.2d 459 [2006], lv. denied 8 N.Y.3d 806, 832 N.Y.S.2d 488, 864 N.E.2d 618 [2007] ; see also People v. DeJesus, 117 A.D.3d 1017, 1018, 986 N.Y.S.2d 244 [2014], lv. denied 24 N.Y.3d 902, 2014 WL 4356077 [2014] ; People v. Newman, 71 A.D.3d 488, 488, 899 N.Y.S.2d 144 [2010] ).
ORDERED that the order is affirmed, without costs.
McCARTHY, GARRY, ROSE and MULVEY, JJ., concur.