| People v D'Adamo |
| 2009 NY Slip Op 08094 [67 AD3d 1132] |
| November 12, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Paul J.D'Adamo, Appellant. |
—[*1] Richard J. McNally, Jr., District Attorney, Troy (Christine M. Rudy, Law Intern), forrespondent.
Garry, J. Appeal from an order of the County Court of Rensselaer County (McGrath, J.),entered June 18, 2008, which classified defendant as a risk level three sex offender pursuant tothe Sex Offender Registration Act.
Defendant pleaded guilty to attempted rape in the first degree and rape in the second degree,stemming from his commission of various sexual acts against an 11-year-old girl. That plea wasin satisfaction of a 12-count indictment charging him with rape in the first degree, rape in thesecond degree, two counts of sodomy in the first degree, two counts of sodomy in the seconddegree, three counts of sexual abuse in the first degree and three counts of sexual abuse in thesecond degree. Defendant's plea also encompassed any potential charges brought againstdefendant by the victim's sister.
Prior to defendant's release from prison, the Board of Examiners of Sex Offenderspresumptively classified him as a risk level two sex offender (75 points) in accordance with theSex Offender Registration Act (see Correction Law art 6-C), but recommended anupward departure to risk level three. County Court initially assessed defendant an additional 20points for the number of victims, relying on the inclusion in the plea agreement of a potentialsecond victim, as well as the impact statement of the victim's mother and statements attributed toa state police investigator in the presentence investigation report and the case summary, all ofwhich alluded to defendant [*2]sexually abusing the victim'ssister as well. This assessment raised defendant's overall score to 95 points, which is still withinthe risk level two range. County Court then agreed with the Board's recommendation for anupward departure and classified defendant as a risk level three sex offender, prompting thisappeal.
"To justify an upward departure from a presumptive risk classification, an aggravating factormust exist which was not otherwise adequately taken into consideration by the risk assessmentguidelines, and the court's finding of such a factor must be supported by clear and convincingevidence" (People v Brown, 45AD3d 1123, 1124 [2007], lv denied 10 NY3d 703 [2008] [citations omitted]; accord People v Roberts, 54 AD3d1106, 1107 [2008], lv denied 11 NY3d 713 [2008]), which may be in the form ofreliable hearsay (see People vThornton, 34 AD3d 1026, 1027 [2006], lv denied 8 NY3d 806 [2007]). Indeparting from a risk level two to a level three classification, County Court concluded that therisk assessment instrument did not adequately consider certain factors regarding evidencecontained in the plea allocution, presentence investigation report and the case summary,including that defendant had similarly sexually abused the victim's sister (see People v Garrison, 38 AD3d1099, 1100 [2007]) and evidence of defendant's sexual obsession with prepubescent girls tothe point of having the mother of the victim alter her physical appearance to replicate that of aprepuberal girl (see People v Lesch,38 AD3d 1129, 1130 [2007], lv denied 8 NY3d 816 [2007]). As evidence inpresentence investigation reports and case summaries may be considered, as reliable hearsay, indetermining a defendant's risk assessment level (see People v Mingo, 12 NY3d 563, 573 [2009]; People v Stewart, 61 AD3d 1059,1060 [2009]), we find, under these circumstances, that an upward departure was supported by therequisite clear and convincing evidence.
Cardona, P.J., Peters, Kane and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.