People v Allen

2005 NYSlipOp 09593

December 15, 2005

Appellate Division, Third Department

As corrected through Wednesday, February 15, 2006

The People of the State of New York, Respondent, v Larry H. Allen, Appellant.

—[*1]

Carpinello, J. Appeal from an order of the County Court of Saratoga County (Scarano, Jr., J.), entered November 16, 2004, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant was convicted upon his plea of guilty of two counts of rape in the third degree after he admittedly engaged in sexual intercourse and sodomy with his 16-year-old stepdaughter on two occasions in January 1999. Prior to defendant's release from prison, the Board of Examiners of Sex Offenders issued a risk assessment instrument assigning defendant a score of 105, which presumptively placed him in the risk level II category under the Sex Offender Registration Act (see Correction Law art 6-C). The Board, however, recommended that defendant be designated a risk level III sex offender due to his continuous and aggressive abuse of the victim over many years. Following a hearing, which defendant elected not to attend, County Court agreed with the Board's recommendation and classified defendant as a risk level III sex offender. He now appeals.

We affirm. First, we reject defendant's contention that the aggravating acts which justified the upward departure had already been taken into account by the risk assessment instrument. The instrument category of "continuing course of sexual misconduct," which [*2]resulted in the imposition of 20 points, related to the crimes for which defendant was convicted, not the aggravating conduct referred to in the case summary which detailed a pattern of abuse of the victim spanning a seven-year period. We are also unpersuaded by defendant's claim that the upward departure was not supported by clear and convincing evidence (see People v Bottisti, 285 AD2d 841, 841-842 [2001]).

Cardona, P.J., Mercure, Mugglin and Lahtinen, JJ., concur. Ordered that the order is affirmed, without costs.