| People v McElhearn |
| 2008 NY Slip Op 09129 [56 AD3d 978] |
| November 20, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brian H.McElhearn, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Laurie L. Paro of counsel), forrespondent.
Mercure, J. Appeal from an order of the County Court of St. Lawrence County (Richards, J.),entered September 26, 2007, which classified defendant as a risk level three sex offenderpursuant to the Sex Offender Registration Act.
Defendant pleaded guilty to attempted disseminating indecent materials to minors in the firstdegree, and was thereafter sentenced by County Court to 180 days in jail and 10 years ofprobation, to be served concurrently (People v McElhearn, 56 AD3d — [2008][decided herewith]). After an initial risk level determination was made by the court pursuant tothe Sex Offender Registration Act (Correction Law art 6-C), that determination was vacatedbecause defendant was not provided with the statutorily required notice of the proceeding(see Correction Law § 168-n [3]). Although defendant was thereafterpresumptively classified as a risk level two sex offender in the risk assessment instrument(hereinafter RAI), the People requested an upward departure, noting among other things thatdefendant had reoffended despite a prior classification at a risk level two, and the predatorynature of defendant's conduct towards young victims. Following a hearing, the court classifieddefendant as a risk level three and predicate sex offender. Defendant appeals and we now affirm.
Pursuant to Correction Law § 168-n (1) and (2), a sentencing court must make adetermination with respect to whether a defendant is a predicate sex offender and a defendant'srisk level of notification "after receiving a recommendation from the [Board of Examiners of Sex[*2]Offenders]" (see People v Black, 33 AD3d 981, 981-982 [2006]; People v Brooksvasquez, 24 AD3d644, 644 [2005]; see also Doe v Pataki, 120 F3d 1263, 1268-1269 [2d Cir 1997],cert denied 522 US 1122 [1998]). Here, the People concede that the Board did notprovide a recommendation to the court; evidently the Probation Department completed the RAIinstead. Notwithstanding this error, inasmuch as defendant failed to object before County Court,his argument in this regard is not preserved for our review (see People v Charache, 9 NY3d 829, 830 [2007]; People v McLean, 55 AD3d 973,974 [2008]).
Turning to the merits, we note initially that even if defendant were to prevail upon hischallenges to the points assessed under risk factors 5 and 12, his total score on the RAI wouldremain within the presumptive level two classification. County Court's classification of defendantas a risk level three sex offender, however, was not based upon the total score set forth in theRAI; rather, the court determined that an upward departure from a risk level two classificationwas warranted under the circumstances of this case. We agree.
"An upward departure from the presumptive risk level is appropriate when aggravating. . . factors are present which were not otherwise sufficiently taken intoconsideration by the risk assessment guidelines" (People v Kwiatkowski, 24 AD3d 878, 879 [2005]; see People v Mount, 17 AD3d714, 715 [2005]). Such a departure must be supported by clear and convincing evidence (see People v Kraus, 45 AD3d 826,827 [2007]; People v Zehner, 24AD3d 826, 827 [2005]). Here, County Court concluded that the RAI did not adequately takeinto consideration factors such as defendant's pattern of offenses involving 14- or 15-year-oldgirls and the predatory nature of his conduct towards all of his intended victims. Inasmuch asclear and convincing evidence supports County Court's determination that an upward departurefrom the presumptive risk level two classification was warranted, we decline to disturb thecourt's classification of defendant as a risk level three sex offender (see People v Miller, 48 AD3d 774,775 [2008], lv denied 10 NY3d 711 [2008]; People v Leibach, 39 AD3d 1093, 1094 [2007], lv denied 9NY3d 806 [2007]; People v Lesch,38 AD3d 1129, 1130 [2007], lv denied 8 NY3d 816 [2007]; People vKwiatkowski, 24 AD3d at 879).
In light of our determination that the upward departure herein was proper, we do not reachdefendant's arguments regarding the points assessed under risk factors 5 and 12 (see generally People v Jackson, 47AD3d 1135, 1136 [2008], lv denied 10 NY3d 709 [2008]; People v Ashley, 19 AD3d 882,883 [2005]).
Cardona, P.J., Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.