Opinion
2012-12-21
The PEOPLE of the State of New York, Respondent, v. Keegan ROBERTSON, Defendant–Appellant.
J. Scott Porter, Seneca Falls, for Defendant–Appellant. Barry Porsch, District Attorney, Waterloo, for Respondent.
J. Scott Porter, Seneca Falls, for Defendant–Appellant. Barry Porsch, District Attorney, Waterloo, for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.). We reject defendant's contention that County Court erred in assessing 30 points against him under risk factor 3, for having three or more victims. “[I]t is well settled that, in determining the number of victims for SORA purposes, the hearing court is not limited to the crime of which defendant was convicted” ( People v. Gardiner, 92 A.D.3d 1228, 1229, 938 N.Y.S.2d 389,lv. denied19 N.Y.3d 801, 2012 WL 1502782). Here, the court properly considered “reliable hearsay evidence,” including defendant's statements to the police, in determining the number of victims (§ 168–n [3]; see People v. Christie, 94 A.D.3d 1263, 1263, 942 N.Y.S.2d 664,lv. denied19 N.Y.3d 808, 2012 WL 2428544).
The court also properly denied defendant's request for a downward departure from his presumptive risk level based upon his young age at the time of the underlying offenses. A departure from the presumptive risk level is warranted where “there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [risk assessment] guidelines” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v. Cummings, 81 A.D.3d 1261, 1262, 916 N.Y.S.2d 432,lv. denied16 N.Y.3d 711, 2011 WL 1643295). Here, the guidelines adequately addressed defendant's age when he committed his first sex crime, and the court properly assessed 10 points under risk factor 8 because, at age 20 or less, he committed a sex offense that resulted in an adjudication or a conviction of a sex crime.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.