Opinion
No. KA 06-03728.
March 14, 2008.
Appeal from an order of the Niagara County Court (Peter L. Broderick, Sr., J.), entered November 2, 2006. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
MATTHEW J. MURPHY, III, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
Present: Hurlbutt, J.P., Lunn, Fahey, Peradotto and Pine, JJ.
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 three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Contrary to the contention of defendant, the upward departure from his presumptive classification as a level one risk is supported by the requisite clear and convincing evidence ( see § 168-n [3]; People v Carswell, 8 AD3d 1073, lv denied 3 NY3d 607). The record establishes that defendant was convicted of two sexual misdemeanors prior to his conviction of possessing a sexual performance by a child (Penal Law § 263.16). In addition, the record establishes that, when defendant was arrested for that felony, he possessed movies that would be of interest to younger children, and the police found binoculars on a window shelf overlooking a playground next to defendant's residence. Those facts, along with other facts not taken into account by the risk assessment instrument, indicate that "the risk of repeat offense is high and there exists a threat to the public safety" (Correction Law § 168-Z [6] [c]), thus justifying the upward departure to a level three risk ( see People v McCollum, 41 AD3d 1187, 1188, lv denied 9 NY3d 807).