People v. Howe

49 A.D.3d 1302, 856 N.Y.2d 320

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 2008
• Status: Published

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 risk level as a level two risk is not supported by clear and convincing evidence. We reject that contention (see People v Gandy, 35 AD3d 1163 [2006]; People v Seils, 28 AD3d 1158 [2006], lv denied 7 NY3d 709 [2006]). “A court may make an upward departure from a presumptive risk level when, ‘after consideration of the indicated factors . . .[,] there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines’ ” (People v Cruz, 28 AD3d 819, 819 [2006]; see People v Foley, 35 AD3d 1240 [2006]). We agree with defendant that the court erred in considering his “chronic alcoholism” as a factor supporting the upward departure from the presumptive risk level because that factor was already taken into account by the risk assessment instrument (see People v Abraham, 39 AD3d 1208, 1209 [2007]; People v Foley, 35 AD3d 1240 [2006]). Nevertheless, we conclude that the court properly relied upon the case summary prepared by the Board of Examiners of Sex Offenders, which constitutes reliable hearsay (see People v Roman, 41 AD3d 1288 [2007], lv denied 9 NY3d 809 [2007]), together with the facts of the underlying conviction and defendant’s prior history of child sexual abuse, in determining that an upward departure to a level three risk was warranted (see Correction Law § 168-Z [6] [c]; § 168-n [3]). Present—Martoche, J.P., Smith, Peradotto, Pine and Gorski, JJ.