| People v Curthoys |
| 2010 NY Slip Op 07636 [77 AD3d 1215] |
| October 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Lawrence A.Curthoys, Appellant. |
—[*1] James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.
Cardona, P.J. Appeal from an order of the County Court of Schoharie County (Bartlett, III,J.), entered August 3, 2009, which classified defendant as a risk level two sex offender pursuantto the Sex Offender Registration Act.
In 2004, defendant pleaded guilty to three counts of possessing a sexual performance by achild and was sentenced to an aggregate prison term of 3
At the subsequent risk assessment hearing, defendant's counsel noted that defendant deniedhaving sexual contact with his granddaughter but chose not to litigate that issue. Instead,defendant's testimony focused on his deteriorating physical condition, which he argued was asignificant mitigating circumstance. Following the hearing, County Court issued a decision andorder rejecting defendant's argument, accepting the Board's recommendation and designating[*2]defendant a risk level two sex offender.
Defendant appeals, contending that the Board's recommendation for an upward departurehinged on acts that cannot be considered aggravating factors because they are adequately coveredby the risk assessment assignment. We do not agree. The Board specified in its case summarythat its modification recommendation was based upon evidence indicating that defendantdownloaded photographs of nude children, took nude photographs of his nine-year-oldgranddaughter, asked her to model thong underwear that he had purchased for his oldergranddaughter, and chatted with teenage girls on line. This conduct is not adequately covered bythe risk assessment guidelines. Moreover, defendant did not dispute any of these findings at thehearing. Given that the uncontested contents of a case summary can satisfy the People's burden ofdemonstrating by clear and convincing evidence the existence of aggravating factors warranting adeparture from the presumptive risk level (see People v Wasley, 73 AD3d 1400, 1401 [2010]; People v Joslyn, 27 AD3d 1033,1033-1034 [2006]), we find no merit in defendant's contention that County Court abused itsdiscretion in classifying him as a risk level two sex offender.
We are also unpersuaded by defendant's claim that his age and deteriorating health aremitigating factors warranting a downward modification of his risk assessment level. As theBoard noted in its case summary, defendant was of an advanced age and in poor health at thetime of his conviction, circumstances which did not prevent him from committing the crimes ofwhich he was convicted—possessing pornographic pictures of children on his computer.Although he now claims that his mobility is limited due to, among other conditions, chronicobstructive pulmonary disease and cardiomyopathy, we note that good mobility is not required inorder to download illicit photographs from the Internet; consequently, defendant's physicalconditions do not "minimize [his] risk of re-offense" (Correction Law § 168-l [5][d]).
Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.