Opinion
1143 KA 21-00021
03-11-2022
The PEOPLE of the State of New York, Respondent, v. Bradly C. LUND, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant contends that County Court's upward departure from his presumptive classification as a level two risk is not supported by clear and convincing evidence. We reject that contention. "It is well settled that a court may grant an upward departure from a sex offender's presumptive risk level when the People establish, by clear and convincing evidence ..., the existence of an aggravating ... factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [risk assessment] guidelines" ( People v. Cardinale , 160 A.D.3d 1490, 1490-1491, 76 N.Y.S.3d 708 [4th Dept. 2018] [internal quotation marks omitted]; see People v. Hackrott , 170 A.D.3d 1646, 1647, 94 N.Y.S.3d 907 [4th Dept. 2019], lv denied 33 N.Y.3d 908, 2019 WL 2457348 [2019] ). Here, we conclude that the court's determination to grant an upward departure was based on clear and convincing evidence of aggravating factors not adequately accounted for by the risk assessment guidelines, including evidence of defendant's lengthy history of sexually aggressive behavior toward children (see People v. Coon , 184 A.D.3d 1091, 1092, 123 N.Y.S.3d 862 [4th Dept. 2020], lv denied 35 N.Y.3d 916, 2020 WL 6178932 [2020] ; People v. Zimmerman , 101 A.D.3d 1677, 1678, 957 N.Y.S.2d 525 [4th Dept. 2012] ; People v. Howe , 49 A.D.3d 1302, 1302, 856 N.Y.S.2d 320 [4th Dept. 2008] ). Contrary to defendant's contention, "the statements in the presentence report and case summary constitute ‘reliable hearsay’ upon which the court properly relied in making the upward departure" ( Coon , 184 A.D.3d at 1092, 123 N.Y.S.3d 862, quoting Correction Law § 168-n [3] ; see People v. Tidd , 128 A.D.3d 1537, 1537, 9 N.Y.S.3d 517 [4th Dept. 2015], lv denied 25 N.Y.3d 913, 2015 WL 3971352 [2015] ; see generally People v. Mingo , 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ).