| People v Palmer |
| 2009 NY Slip Op 09326 [68 AD3d 1364] |
| December 17, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Justin Palmer,Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Spain, J. Appeal from an order of the County Court of Greene County (Lalor, J.), enteredApril 11, 2008, which classified defendant as a risk level two sex offender pursuant to the SexOffender Registration Act.
While living in Florida in August 2002, defendant sexually molested a 15-year-old girl.Approximately five months later, he was involved in an armed home invasion in that state. Hesubsequently pleaded guilty to crimes arising out of both incidents and was sentenced to anaggregate five-year prison term. Upon his release, defendant relocated to the Town of Catskill,Greene County, and the Board of Examiners of Sex Offenders prepared a risk assessmentinstrument (hereinafter RAI) in which he was assigned 70 points, placing him in the presumptiverisk level one category under the Sex Offender Registration Act (see Correction Law art6-C). At the hearing that followed, the People argued, as relevant here, that the Board's RAIfailed to properly assign 30 points under risk factor 9, for the "number and nature of priorcrimes," for defendant's conviction related to the 2003 armed home invasion offense. In adetailed written decision, County Court concluded that defendant's 2003 home invasion did notconstitute a "prior crime" with regard to his 2002 sex offense, but that it was a subsequentcriminal offense which was an aggravating factor not adequately taken into consideration by theRAI, justifying an upward departure to a risk level two sex offender. Defendant now appeals.[*2]
We affirm. Defendant argues, for the first time on thisappeal, that the People failed to comply with the statutory requirement that they provide CountyCourt and the sex offender with 10-day written notice of their intent to seek a determinationdifferent from that recommended by the Board, and the reasons therefor (see CorrectionLaw § 168-k [2]). However, defendant never at any point raised this issue before CountyCourt and, thus, it is not preserved for our review (see People v Charache, 9 NY3d 829, 830 [2007]; People v McLean, 55 AD3d 973,974 [2008]). The record contains a copy of the People's RAI calculating a risk factor score of100, a presumptive level two, although it is not clear if and when the defense received it. In anyevent, the hearing transcript supports the conclusion that defense counsel was prepared toaddress and challenge the only risk factors in dispute (factor 9 [prior crimes] and factor 12[acceptance of responsibility]).
To the extent that defendant contends that County Court was required, as a matter of dueprocess, to advise him at the hearing that the court was considering an upward departure, we arenot persuaded. A review of the record reveals that "defendant and counsel were given andpursued an ample and meaningful opportunity to respond to all aspects of the People's. . . risk level assessment" (People v Warren, 42 AD3d 593, 594 [2007], lv denied 9NY3d 810 [2007]). The defense was well aware that the People were advocating for the additionof 30 points under factor 9 based upon defendant's 2003 home invasion and that, even if thatsubsequent crime did not qualify as a prior crime under factor 9, the People were nonethelessurging that it be considered as part of defendant's entire history, which they argued warranted arisk level two designation. Defendant was not denied either fair notice or an opportunity to beheard on this point and he received all of the due process to which he was entitled (seePeople v Brooks, 308 AD2d 99, 103 [2003], lv denied 1 NY3d 502 [2003]). WhileCounty Court could have advised defendant that it was considering an upward departure (see e.g. People v Wheeler, 59 AD3d1007, 1008 [2009], lv denied 12 NY3d 711 [2009]), there is no requirement that itdo so and, in any event, the record is clear that the court was taking into consideration allinformation relevant to his risk level—including his subsequent crimes—regardlessof whether it fit within one of the RAI's defined factors. His due process claims are,consequently, without merit.
Turning to the merits, we are not persuaded that County Court abused its discretion inincreasing defendant's classification from the risk level one recommended by the Board to risklevel two. "To justify an upward departure from a presumptive risk classification, an aggravatingfactor must exist which was not otherwise adequately taken into consideration by the riskassessment guidelines, and the court's findings of such a factor must be supported by clear andconvincing evidence" (People vBrown, 45 AD3d 1123, 1124 [2007], lv denied 10 NY3d 703 [2008] [citationsomitted]). Here, County Court based its upward departure on defendant's subsequent criminalconduct, which the court concluded increased the risk that defendant posed to public safety andwhich was not reflected in the RAI. That conduct included the armed home invasion, duringwhich defendant and another person beat and tied up their victim, put a sheet over the victim'shead, stole the victim's automobile and then engaged in a high speed chase with responding lawenforcement officials. Upon defendant's arrest, law enforcement discovered that he was thesubject of two outstanding warrants, one related to his sex offense and the other for aggravatedbattery with a deadly weapon. Inasmuch as his convictions for kidnapping and falseimprisonment—arising out of the armed home invasion—and for aggravated batterywith a deadly weapon were not taken into account by the RAI, each was properly considered anaggravating factor indicative of violent behavior warranting an upward departure (see People v Joslyn, 27 AD3d1033, 1034-1035 [2006]; Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 13-14 [2006]). Moreover, contrary to defendant's assertion, the [*3]case summary and the Florida criminal history documentationcontained in the record "constitute reliable hearsay and provide clear and convincing evidencesupporting County Court's upward departure" (People v Mann, 52 AD3d 884, 886 [2008] [citations omitted]; see People v Mingo, 12 NY3d563, 572, 574 [2009]). Accordingly, we perceive no basis upon which to disturb CountyCourt's classification of defendant as a risk level two sex offender.
Cardona, P.J., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.