Opinion
11-17-2016
The PEOPLE of the State of New York, Respondent, v. George WHEELER, Appellant.
James A. Sacco, Binghamton, for appellant. Gerald F. Mollen, District Attorney, Binghamton (David M. Petrush of counsel), for respondent.
James A. Sacco, Binghamton, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (David M. Petrush of counsel), for respondent.
Before: PETERS, P.J., GARRY, EGAN JR., ROSE and MULVEY, JJ.
GARRY, J.Appeal from an order of the County Court of Broome County (Smith, J.), entered March 12, 2015, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.
Defendant was convicted in 2012 of possessing an obscene sexual performance by a child and was sentenced to a prison term of 1 ? to 4 years. In anticipation of his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI) in accordance with the Sex Offender Registration Act (see Correction Law art. 6–C) that presumptively classified defendant as a risk level two sex offender (75 points). The Board and the People, however, recommended an upward departure to a risk level three classification. Following a hearing, County Court adopted the Board's RAI and further determined that an upward departure to a risk level three classification was warranted. Defendant now appeals.
We affirm. “An ‘upward departure from the presumptive risk level is justified when an aggravating factor, not adequately taken into account by the risk assessment guidelines, is established by clear and convincing evidence’ ” (People v. Sabin, 139 A.D.3d 1282, 1282, 30 N.Y.S.3d 591 [2016] [brackets omitted], lv. denied ––– N.Y.3d ––––, 2016 WL 6209324 [Oct. 25, 2016], quoting People v. Auleta, 135 A.D.3d 1251, 1252, 23 N.Y.S.3d 490 [2016], lv. denied 27 N.Y.3d 903, 2016 WL 1312781 [2016] ). “In rendering such a determination, County Court may consider reliable hearsay evidence such as the case summary, presentence investigation report and the [RAI]” (People v. Sabin, 139 A.D.3d at 1282, 30 N.Y.S.3d 591 [internal quotation marks and citation omitted]; see People v. Becker, 120 A.D.3d 846, 847, 990 N.Y.S.2d 743 [2014], lv. denied 24 N.Y.3d 908, 2014 WL 5437028 [2014] ).
The reliable hearsay evidence, including the case summary and presentence investigation report, demonstrates that defendant admitted to being a pedophile and that he had been viewing child pornography for two years. Defendant would seek out pornography involving girls who are five years old and older; he was found with approximately 30 compact discs containing child pornography in his basement and over 27,000 pornographic images stored on his computer and cell phone, including numerous images of children involved in sex acts and a video of an adult having sexual contact with a child. His cell phone was also used, apparently surreptitiously, to film a video of a young girl sitting on a bus. In light of the aggravating factors not taken into consideration by the RAI—including the duration and degree of defendant's child pornography habit and his obsession with young girls—we find County Court's determination that an upward departure was warranted is supported by clear and convincing evidence (see People v. Burke, 139 A.D.3d 1268, 1270, 31 N.Y.S.3d 675 [2016] ; People v. Labrake, 121 A.D.3d 1134, 1135–1136, 993 N.Y.S.2d 193 [2014] ).
We reject defendant's contention that County Court did not properly consider evidence that he was scored at a medium-low risk of recidivism under a STATIC–99 risk evaluation instrument in making the determination. This instrument was submitted and reviewed in the course of the hearing, and the court retained the discretion to determine what weight it should be afforded (see People v. Ferrer, 69 A.D.3d 513, 514, 894 N.Y.S.2d 387 [2010], lv. denied 14 N.Y.3d 709, 2010 WL 1755095 [2010] ). Considering the evidence warranting an upward departure from the presumptive risk assessment, we do not find that County Court erred in classifying defendant as a risk level three sex offender, despite his test scores. Defendant's remaining claims have been considered and found to be without merit.
ORDERED that the order is affirmed, without costs.
PETERS, P.J., EGAN JR., ROSE and MULVEY, JJ., concur.