| People v Hammer |
| 2011 NY Slip Op 02088 [82 AD3d 1456] |
| March 24, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jason K.Hammer, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Stein, J. Appeal from an order of the Supreme Court (Lamont, J.), entered December 23,2009 in Albany County, which classified defendant as a risk level three sex offender pursuant tothe Sex Offender Registration Act.
Defendant pleaded guilty to rape in the third degree, stemming from him having had sexualintercourse with a 13-year-old girl. Prior to his release from prison, the Board of Examiners ofSex Offenders presumptively classified defendant as a risk level two sex offender (105 points,the highest number in risk level two) in accordance with the Sex Offender Registration Act(see Correction Law art 6-C), but recommended an upward departure to risk level three.Following a risk assessment hearing, Supreme Court agreed that an upward departure waswarranted and classified defendant as a risk level three sex offender. Defendant now appeals.
"To justify an upward departure from a presumptive risk classification, an aggravating factormust exist which was not otherwise adequately taken into consideration by the risk assessmentguidelines, and the court's finding of such a factor must be supported by clear and convincingevidence" (People v Brown, 45AD3d 1123, 1124 [2007], lv denied 10 NY3d 703 [2008] [citations omitted]; accord People v Beames, 71 AD3d1300, 1300 [2010]). In making such a determination, a court may consider reliable hearsayevidence, including information [*2]contained in the casesummary and the presentence investigation report (see Correction Law § 168-n [3];People v Stewart, 77 AD3d1029, 1030 [2010]; People vD'Adamo, 67 AD3d 1132, 1133 [2009], lv denied 15 NY3d 714 [2010]). In thismatter, there is evidence in the case summary and presentence investigation report that defendantwas charged in 1996, when he was 13 years old, with sexual abuse in the first degree. The chargestemmed from allegations that he molested a three-year-old child. While this apparently did notresult in a conviction, there is evidence that defendant participated in an adolescent sex offenderprogram from 1996 to 1998. Inasmuch as these circumstances were not accounted for in the riskassessment instrument and constitute an aggravating factor, we conclude that there was anappropriate basis for an upward departure. Therefore, Supreme Court's classification of defendantas a risk level three sex offender will not be disturbed.
Mercure, J.P., Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.