| People v Wasley |
| 2010 NY Slip Op 04482 [73 AD3d 1400] |
| May 27, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RichardWasley, Appellant. |
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Mercure, J. Appeal from an order of the County Court of Broome County (Smith, J.), enteredApril 16, 2009, which classified defendant as a risk level three sex offender pursuant to the SexOffender Registration Act.
In 1997, defendant pleaded guilty to sodomy in the first degree, sexual abuse in the firstdegree and endangering the welfare of a child, and was sentenced to a prison term of 9 to 18years. In anticipation of his release from prison, the Board of Examiners of Sex Offendersprepared a risk assessment instrument, presumptively classifying defendant as a risk level twosex offender (105 points) in accordance with the Sex Offender Registration Act (seeCorrection Law art 6-C), but recommending an upward departure from that risk level. Followinga risk assessment hearing, County Court reduced defendant's total risk factor score to 85 points,still within the risk level two classification, but concluded that an upward departure to risk levelthree was warranted. Defendant now appeals.
We affirm. "To justify an upward departure from a presumptive risk classification, anaggravating factor must exist which was not otherwise adequately taken into consideration bythe risk assessment guidelines, and the court's finding of such a factor must be supported by clearand convincing evidence" (People vBrown, 45 AD3d 1123, 1124 [2007], lv denied 10 NY3d [*2]703 [2008] [citations omitted]). Notably, evidence included in thecase summary may provide clear and convincing evidence in determining a defendant's riskassessment level where defendant did not dispute its contents insofar as relevant (see People v D'Adamo, 67 AD3d1132, 1133-1134 [2009]; People vMann, 52 AD3d 884, 886 [2008]; People v Joslyn, 27 AD3d 1033, 1034 [2006]). Here, County Courtarticulated that an upward modification was warranted based upon defendant's current andprevious convictions, as well as evidence in the case summary of defendant's conductsurrounding the 1997 conviction. Initially, we agree with defendant that his current and priorconvictions were properly considered by the current offense and criminal history portions of therisk assessment guidelines and cannot be considered aggravating factors warranting a departure.Contrary to defendant's contention, however, evidence in the case summary concerning hisegregious conduct surrounding the 1997 conviction was not adequately taken into considerationby the risk assessment guidelines and, thus, could be relied on by County Court as justificationfor an upward departure. Specifically, there is evidence that, after the victim's mother was alertedby a neighbor that the victim, a six-year-old boy, had followed defendant into his house, themother and the neighbor looked in the window and the victim's mother then attempted to rescuethe victim, but was prevented from doing so when defendant locked the door to his house. Underthese circumstances, we conclude that County Court properly relied upon factors not adequatelytaken into consideration by the risk assessment guidelines and, accordingly, we decline to disturbthe upward departure.
Cardona, P.J., Lahtinen, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.