People v. Cunningham

68 A.D.3d 1795, 890 N.Y.2d 839

Opinion

Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Contrary to defendant’s contention, the statements in the case summary constitute reliable hearsay upon which County Court properly relied pursuant to Correction Law § 168-n (3) (see People v Thompson, 66 AD3d 1455 [2009]; People v Ramos, 41 AD3d 1250 [2007], lv denied 9 NY3d 809 [2007]; People v Wragg, 41 AD3d 1273 [2007], lv denied 9 NY3d 809 [2007]). Those statements constitute clear and convincing evidence that an upward departure from the presumptive risk level was warranted based upon “an aggravating . . . factor of a kind, or to a degree, . . . otherwise not adequately taken into account by the [risk assessment] guidelines” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]). Present — Scudder, EJ., Hurlbutt, Smith and Centra, JJ.