| People v Stewart |
| 2010 NY Slip Op 07285 [77 AD3d 1029] |
| October 14, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Donald J.Stewart, Appellant. |
—[*1] Richard J. McNally, Jr., District Attorney, Troy (Gordon Eddy of counsel), forrespondent.
Mercure, J. Appeal from an order of the County Court of Rensselaer County (Ceresia, J.),entered July 17, 2009, which classified defendant as a risk level three sex offender pursuant tothe Sex Offender Registration Act.
The relevant facts are more fully set forth in our prior decision in this matter (People v Stewart, 61 AD3d 1059[2009]). As relevant here, in anticipation of defendant's release from prison following hisconviction for aggravated sexual abuse in the second degree, the Board of Examiners of SexOffenders prepared a risk assessment instrument that presumptively classified defendant as a risklevel two sex offender (90 points) in accordance with the Sex Offender Registration Act(see Correction Law art 6-C). However, the Board recommended an upward departurefrom that risk level. Upon remittal from this Court to determine whether an upward departure iswarranted, County Court held a hearing, after which it agreed with the People that an upwarddeparture is appropriate and denominated defendant a risk level three sex offender. Defendantnow appeals.
We affirm. An upward departure from a presumptive risk classification is justified when anaggravating factor exists that is not otherwise adequately taken into account by the riskassessment guidelines and the court finds that such factor is supported by clear and convincingevidence (see People v Beames, 71AD3d 1300, 1300 [2010]; People vPalmer, 68 AD3d 1364, 1366 [2009]). To that end, the court may consider reliablehearsay evidence, including the case [*2]summary, risk levelassessment instrument and presentence investigation report (see Correction Law §168-n [3]; People v Palmer, 68 AD3d at 1366; People v LaRock, 45 AD3d 1121, 1122 [2007]). Here, 20 pointswere assessed in the risk assessment instrument for a continuing course of sexual misconduct.However, we agree with County Court that this "did not adequately reflect the aggravatingfactors of the length and nature of defendant's abuse" towards his seven-year-old victim, wherethe case summary and presentence investigation report establish that he had repeated contact withthe victim's breasts and genitals, causing contusions and pain, and the conduct continued for wellover a year (People v Leibach, 39AD3d 1093, 1094 [2007], lv denied 9 NY3d 806 [2007]; see People v Harris, 50 AD3d1556, 1557 [2008], lv denied 10 NY3d 716 [2008]). Finally, we find unavailingdefendant's contention that County Court did not take into account his counseling efforts or theletter submitted on his behalf, inasmuch as the court stated on the record that it had reviewed thatevidence and would consider it in rendering its determination.
Cardona, P.J., Spain, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed,without costs.