| People v Cunningham |
| 2009 NY Slip Op 09914 [68 AD3d 1795] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jonathan A.Cunningham, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), entered May 16,2008. The order determined that defendant is a level two risk pursuant to the Sex OffenderRegistration 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 two riskpursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).Contrary to defendant's contention, the statements in the case summary constitute reliablehearsay upon which County Court properly relied pursuant to Correction Law § 168-n (3)(see People v Thompson, 66 AD3d1455 [2009]; People v Ramos,41 AD3d 1250 [2007], lv denied 9 NY3d 809 [2007]; People v Wragg, 41 AD3d 1273[2007], lv denied 9 NY3d 809 [2007]). Those statements constitute clear and convincingevidence that an upward departure from the presumptive risk level was warranted based upon"an aggravating . . . factor of a kind, or to a degree, . . . otherwise notadequately taken into account by the [risk assessment] guidelines" (Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary, at 4 [2006]). Present—Scudder, P.J.,Hurlbutt, Smith and Centra, JJ.