| People v Roberts |
| 2008 NY Slip Op 06903 [54 AD3d 1106] |
| September 18, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James O.Roberts, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Robin S. Engler of counsel), forrespondent.
Malone Jr., J. Appeal from an order of the County Court of Broome County (Smith, J.),entered June 22, 2007, which classified defendant as a risk level three sex offender pursuant tothe Sex Offender Registration Act.
In satisfaction of a three-count indictment, defendant pleaded guilty to sexual abuse in thefirst degree and was sentenced, as a second felony offender, to three years in prison and fiveyears of postrelease supervision. Although defendant was presumptively classified as a risk leveltwo sex offender, the Board of Examiners of Sex Offenders sought an upward departure andrecommended that defendant be classified as a risk level three predicate sex offender. Followinga hearing, County Court granted the upward departure and classified defendant as a risk levelthree sex offender, prompting this appeal.
Preliminarily, although defendant is correct that County Court failed to render an orderdetailing the findings of fact and conclusions of law upon which its determination was based(see Correction Law § 168-n [3]), remittal is not required where, as here, thecourt's oral findings are clear, supported by the record and sufficiently detailed to permitintelligent appellate review (see Peoplev Joslyn, 27 AD3d 1033, 1035 [2006]; compare People v Marr, 20 AD3d 692, 693 [2005]). Turning to themerits, "[t]o justify an upward departure from a presumptive risk [*2]classification, an aggravating factor must exist which was nototherwise adequately taken into consideration by the risk assessment guidelines, and the court'sfinding of such a factor must be supported by clear and convincing evidence" (People v Brown, 45 AD3d 1123,1124 [2007], lv denied 10 NY3d 703 [2008]; see People v Cruz, 28 AD3d 819 [2006]).
Here, in concluding that an upward departure was warranted, County Court cited defendant'sconduct in this matter, his 1998 conviction of sexual abuse in the second degree and sexual abusein the third degree, and, of particular significance, defendant's 2004 conviction for failure toregister as a sex offender. We agree with defendant that the particular circumstances of thisoffense and his 1998 sexual abuse conviction are adequately covered by the current offense andcriminal history portions of the risk assessment instrument and, therefore, cannot be consideredaggravating factors. Contrary to defendant's assertion, however, his failure to comply withpreviously imposed sex offender registration requirements is not adequately taken intoconsideration by the risk assessment guidelines and was properly considered as justification forthe upward departure (see People vHill, 50 AD3d 990, 991 [2008], lv denied 11 NY3d 701 [2008]). Accordingly,we decline to disturb County Court's classification of defendant as a risk level three sex offender.
Mercure, J.P., Spain, Carpinello and Stein, JJ., concur. Ordered that the order is affirmed,without costs.