Opinion
06-30-2016
The PEOPLE of the State of New York, Respondent, v. Joseph GUYETTE, Appellant.
Theresa Suozzi, Saratoga Springs, for appellant. Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Theresa Suozzi, Saratoga Springs, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Before: LAHTINEN, J.P., EGAN JR., LYNCH, DEVINE and MULVEY, JJ.
Opinion
MULVEY, J. Appeal from an order of the County Court of Saratoga County (Sypniewski, J.), entered January 27, 2015, which classified defendant as a risk level II sex offender pursuant to the Sex Offender Registration Act.
In satisfaction of a 74–count indictment, defendant pleaded guilty to 10 counts each of promoting a sexual performance by a child and possessing a sexual performance by a child and was sentenced to concurrent prison terms of 1 to 3 years on each count. Prior to his release from prison, the Board of Examiners of Sex Offenders prepared a Risk Assessment Instrument (hereinafter RAI) pursuant to the Sex Offender Registration Act (see Correction Law art 6–C) and assessed defendant 20 points for risk factor 5 (age of victim), presumptively classifying defendant as risk level I sex offender. However, the Board and the People recommended an upward departure to a risk level II classification. Following a hearing, County Court assessed 30 points for risk factor 3 (number of victims) and 20 points for risk factor 7 (relationship with victim as a stranger). Although defendant's presumptive classification remained in the risk level I category, the court determined that an upward departure was warranted and thereafter classified defendant as a risk level II sex offender. Defendant now appeals.
Initially, to the extent that defendant contends that County Court did not sufficiently set forth its findings and conclusions of law, we note that despite the lack of a detailed written order, the court “made oral findings and conclusions that are clear, supported by the record and sufficiently detailed to permit intelligent review” (People v. Labrake, 121 A.D.3d 1134, 1135, 993 N.Y.S.2d 193 [2014] ). Next, with regard to County Court's assessment of an additional 50 points on the RAI, we note that defendant is not aggrieved as, even with a final score of 70 points, he remained within the presumptive classification of a risk level I sex offender. In any event, we find that the points for risk factors 3 and 7 were properly assessed as defendant possessed over 220 pornographic images of children (see People v. Gillotti , 23 N.Y.3d 841, 845, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ), and the children in the images were clearly strangers to defendant (see People v. Johnson, 11 N.Y.3d 416, 420–421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ).
Turning to the merits, we are unpersuaded by defendant's contention 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 RAI. It is well settled that “an upward departure from a presumptive risk classification is justified when an aggravating factor exists that is not otherwise adequately taken into account by the risk assessment guidelines and the court finds that such factor is supported by clear and convincing evidence” (People v. Bower, 127 A.D.3d 1507, 1508, 7 N.Y.S.3d 703 [2015], lv. denied 26 N.Y.3d 910, 2015 WL 6457184 [2015] ; see People v. Gillotti, 23 N.Y.3d at 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 ). The reliable hearsay evidence submitted by the People, including the case summary, presentence investigation report and defendant's sworn statement to police, established defendant's daily downloading and viewing of child pornography for over 1 ½ years, and defendant admitted in his sworn statement to deviant sexual arousal by masturbation while viewing the images. Furthermore, the evidence reveals, among other things, that defendant entered into online chats with children during which he asked about their genitalia and that they masturbate. In view of the foregoing, County Court appropriately found that the RAI did not adequately take into account the aggravating circumstances of defendant's conduct, and we find no abuse of discretion in defendant's classification as a risk level II sex offender (see
People v. Rowe, 136 A.D.3d 1125, 25 N.Y.S.3d 696 [2016] ; People v. Bower, 127 A.D.3d at 1508, 7 N.Y.S.3d 703 ; People v. Labrake, 121 A.D.3d at 1135–1136, 993 N.Y.S.2d 193 ; People v. Gauthier, 100 A.D.3d 1223, 1225, 954 N.Y.S.2d 240 [2012] ).
ORDERED that the order is affirmed, without costs.
LAHTINEN, J.P., EGAN JR., LYNCH and DEVINE, JJ., concur.