| People v Farrell |
| 2010 NY Slip Op 08669 [78 AD3d 1454] |
| November 24, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Graham Farrell,Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Rose, J. Appeal from an order of the County Court of Columbia County (Czajka, J.), enteredMarch 10, 2010, which classified defendant as a risk level two sex offender pursuant to the SexOffender Registration Act.
In 2004, defendant pleaded guilty to criminal sexual conduct in the second degree in Minnesotaand was sentenced to 25 years of probation. Upon his relocation to New York in 2009, the Board ofExaminers of Sex Offenders prepared a risk assessment instrument which presumptively classifieddefendant as a risk level one sex offender (50 points) in accordance with the Sex Offender RegistrationAct (see Correction Law art 6-C), but recommended an upward departure to risk level twostatus. Following a risk assessment hearing, County Court agreed that an upward departure waswarranted and classified defendant as a risk level two sex offender. This appeal ensued.
We note preliminarily that County Court's oral findings are supported by the record and sufficientlydetailed to permit intelligent review; thus, remittal is not required despite defendant's accurate assertionregarding the court's failure to render an order setting forth the findings of fact and conclusions of lawupon which its determination is based (seePeople v Roberts, 54 AD3d 1106, 1106-1107 [2008], lv denied 11 NY3d 713[2008]). Turning to the merits, an upward [*2]departure from thepresumptive risk classification is justified when clear and convincing evidence establishes the existenceof an aggravating factor that is not adequately taken into account by the risk assessment guidelines (see People v Wasley, 73 AD3d 1400,1400 [2010]; People v Brown, 45AD3d 1123, 1124 [2007], lv denied 10 NY3d 703 [2008]). Here, defendant's guilty pleaarose out of his touching the penis of an 11-year-old boy—to whom he was providing privatepiano lessons. He was consequently assessed points on the risk assessment instrument for sexualconduct with the victim under clothing (10), the victim's age (20) and for abusing his professionalrelationship with the victim (20).
The Board recommended an upward departure based on, among other things, defendant'sdisclosure that he had inappropriately touched another boy. The case summary indicates that defendantinitially denied such behavior, admitting it only after being informed that he might have to undergo apolygraph examination. Moreover, a treatment discharge form introduced into evidence by defendantreveals that he also admitted abusing other boys. Such acts did not lead to criminal charges and werenot accounted for in the risk assessment instrument. Accordingly, County Court properly concludedthat they were an appropriate basis for an upward departure (see Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary, at 7 [2006]). Contrary to defendant's assertion, thecase summary, treatment discharge form and a psychosexual evaluation report completed inMinnesota—which also references defendant's prior sexual contact with a child—arereliable hearsay and provide clear and convincing evidence to support County Court's upwarddeparture (see Correction Law § 168-n [3]; People v Palmer, 68 AD3d 1364, 1366 [2009]; People v Mann, 52 AD3d 884, 886[2008]). Accordingly, we decline to disturb County Court's classification of defendant as a level twosex offender.
Mercure, J.P., Peters, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.