| People v Frosch |
| 2010 NY Slip Op 00239 [69 AD3d 699] |
| January 12, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Frosch, Appellant. |
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Appeal by the defendant from an order of the County Court, Nassau County (Brown, J.),entered February 15, 2005, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant was convicted, upon his plea of guilty, of rape in the first degree. Thecomplainant was the defendant's daughter. Following a hearing, the County Court granted thePeople's request for an upward departure and designated the defendant a level three sex offenderpursuant to Correction Law article 6-C.
The Sex Offender Registration Act (hereinafter SORA) Guidelines advise that theassessment by the Board of Examiners of Sex Offenders (hereinafter the Board) of the riskfactors set forth in the risk assessment instrument generally result in a "presumptive" SORAdetermination (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at4 [2006]; see also People vMcLaughlin, 40 AD3d 832, 833 [2007]). As the term "presumptive" implies, the courtis not bound by the Board's recommendation. However, the SORA Guidelines caution thatdepartures from the Board's recommendation will be the exception, not the rule, and should onlybe made where "there exists an aggravating or mitigating factor of a kind, or to a degree, that isotherwise not adequately taken into account by the guidelines" (id.; see People v Miller, 48 AD3d774, 775 [2008]; People vChandler, 48 AD3d 770 [2008]; People v White, 25 AD3d 677 [2006]; People v Inghilleri, 21 AD3d 404,406 [2005]). To warrant a departure from the presumptive risk level, there must be clear andconvincing evidence of a special circumstance (see People v Barad, 50 AD3d 988, 989 [2008]; People v Miller,48 AD3d at 775; People v Burgos,39 AD3d 520, 520 [2007]; People v Abdullah, 31 AD3d 515, 516 [2006]; People vInghilleri, 21 AD3d at 406).
Here, contrary to the defendant's contention, the court properly set forth the basis for itsdetermination, as required under Correction Law § 168-n (3). Moreover, based on theevidence before the court at the hearing, including the case summary describing the defendant'scrimes, and the [*2]presentence report, the court appropriatelydetermined that the SORA Guidelines did not adequately take into account the egregious andabhorrent nature of the defendant's sexual abuse of his own daughter, which occurred when shewas between the ages of three and eight, or the threats he made to her that he would harm herfamily if she disclosed the abuse, and properly considered those factors sufficient to warrant anupward departure (see People v Rios,57 AD3d 501 [2008]; People vMiller, 48 AD3d 774 [2008]; People v O'Flaherty, 23 AD3d 237 [2005]). The finding wassupported by clear and convincing evidence (see People v Barad, 50 AD3d at 989; People v Burgos, 39 AD3d 520[2007]; People v Inghilleri, 21 AD3d at 406).
Contrary to the defendant's contention, he was not prejudiced by the People's failure toprovide him with the complainant's grand jury testimony in violation of the disclosurerequirements set forth in Correction Law § 168-n (3) (see CPL 470.05 [2]). Theportions of the complainant's grand jury testimony referenced by the prosecutor were included inboth the presentence report and the case summary, both of which the defendant had prior to thehearing. Moreover, the defendant was provided a meaningful opportunity to respond (seePeople v Inghilleri, 21 AD3d at 405; cf. People v Ferguson, 53 AD3d 571 [2008]). Rivera, J.P.,Leventhal, Belen and Austin, JJ., concur.