WITHERSPOON, DAVID A., PEOPLE v

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 2016
• Docket: KA 14-02143
• Status: Published

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

510 KA 14-02143 PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

DAVID A. WITHERSPOON, DEFENDANT-APPELLANT.

JEANNIE D. MICHALSKI, CONFLICT DEFENDER, GENESEO, FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.

Appeal from an order of the Livingston County Court (Robert B. Wiggins, J.), dated October 23, 2014. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

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 two 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 Tidd, 128 AD3d 1537, 1537, lv denied 25 NY3d 913). We reject defendant’s further contention that the court improperly admitted a sworn deposition from each of the two victims inasmuch as those depositions constitute “reliable hearsay” that the court could properly consider in making an upward departure (§ 168-n [3]; see People v Pichcuskie, 111 AD3d 1344, 1344, lv denied 22 NY3d 861).

Entered: June 10, 2016 Frances E. Cafarell Clerk of the Court