| People v Wheeler |
| 2009 NY Slip Op 00868 [59 AD3d 1007] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Matthew J.Wheeler, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from an order of the Supreme Court, Monroe County (Joseph D. Valentino, J.),entered November 14, 2007. The order determined that defendant is a level three risk pursuant tothe Sex Offender 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.). We reject the contention of defendant that Supreme Court violated his due processrights when it determined, sua sponte, that a departure from the presumptive risk level basedupon the risk assessment instrument was warranted. The court adjourned the SORA hearing afteradvising defendant that it was considering an upward departure, thus protecting his due processrights by affording him notice and a meaningful opportunity to respond (see generally People v Warren, 42AD3d 593, 594 [2007], lv denied 9 NY3d 810 [2007]; People v Jordan, 31 AD3d 1196[2006], lv denied 7 NY3d 714 [2006]). Contrary to defendant's further contention, thestatements in the presentence report constitute "reliable hearsay" (Correction Law § 168-n[3]). Those statements, moreover, provide clear and convincing evidence that an upwarddeparture from the presumptive risk level is warranted based upon "an aggravating. . . factor of a kind, or to a degree, that is otherwise not adequately taken intoaccount by the [risk assessment] guidelines" (Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 4 [2006]; see People v Gandy, 35 AD3d 1163 [2006]; People v Goodwin, 35 AD3d1285 [2006]). Present—Martoche, J.P., Fahey, Green, Pine and Gorski, JJ.