| People v Mallaber |
| 2009 NY Slip Op 00835 [59 AD3d 989] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joseph K.Mallaber, Appellant. |
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Appeal from an order of the Steuben County Court (Marianne Furfure, J.), enteredSeptember 12, 2007. The order determined that defendant is a level three risk pursuant to the SexOffender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three riskpursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 etseq.). Following a SORA hearing, defendant was presumptively classified as a level two riskbased on a total risk factor score of 85. County Court then determined, however, that an upwarddeparture to a level three risk was warranted based on the testimony of defendant's mental healththerapist, who diagnosed defendant as having several psychological disorders.
We reject defendant's contention that the court's upward departure to a level three risk is notsupported by clear and convincing evidence because the mental health therapist testified that thepsychological disorders of defendant could affect his ability to control his sexual impulses, buthe did not testify that they would in fact do so. The mental health therapist testified thatdefendant suffered from a sexual disorder, not otherwise specified, that the disorder ofpedophilia had not been ruled out, that the sexual disorder was at least partially the reason for themaladaptive behavior of defendant, and that his psychological abnormalities could affect hisability to control his sexual impulses. We thus conclude on the record before us that, based onthe totality of that testimony, defendant's psychological abnormalities are causally related to anyrisk of reoffense, and thus that there is clear and convincing evidence of special circumstances tosupport the court's upward departure from defendant's presumptive risk level (see generally People v Burgos, 39AD3d 520, 521 [2007]; People vPerkins, 35 AD3d 1167 [2006]; People v Zehner, 24 AD3d 826, 827 [2005]).
In view of our decision, it is unnecessary to address defendant's remaining contention.Present—Scudder, P.J., Hurlbutt, Peradotto and Gorski, JJ.