Opinion
610 KA 13-01849
05-08-2015
The PEOPLE of the State of New York, Respondent, v. Alan D. TIDD, Sr., Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.
Opinion
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 one risk is not supported by clear and convincing evidence. We reject that contention. “The court's discretionary upward departure [to a level three risk] was based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument” (People v. Sherard, 73 A.D.3d 537, 537, 903 N.Y.S.2d 3, lv. denied 15 N.Y.3d 707, 2010 WL 3583171 ; see People v. Howe, 49 A.D.3d 1302, 1302, 856 N.Y.S.2d 320 ). Statements in a presentence report and case summary constitute “reliable hearsay” upon which a court may properly rely in making an upward departure (§ 168–n [3]; see People v. Mingo, 12 N.Y.3d 563, 572–573, 883 N.Y.S.2d 154, 910 N.E.2d 983 ) and, here, the court premised its upward departure on information contained in those documents, including evidence of the number of victims whom defendant sexually abused, the lengthy period over which defendant committed that sexual abuse, defendant's lack of “insight into his offending,” and the risk of recidivism. Finally, we reject defendant's further contention that he was deprived of effective assistance of counsel (see People v. Russell, 115 A.D.3d 1236, 1236, 982 N.Y.S.2d 271 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.