| People v Burch |
| 2011 NY Slip Op 09554 [90 AD3d 1429] |
| December 29, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Joseph E. Burch Jr., Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Rita Basile of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the County Court of Broome County (Cawley, J.),entered July 6, 2010, which classified defendant as a risk level three sex offender pursuant to theSex Offender Registration Act.
Following a nonjury trial, defendant was convicted in April 2005 of burglary in the seconddegree, attempted sexual abuse in the first degree and unlawful imprisonment in the seconddegree after he forcibly entered a young woman's apartment while he was intoxicated andattempted to sexually assault her (Peoplev Burch, 45 AD3d 1188 [2007]). County Court (Mathews, J.) thereafter sentenceddefendant as a second felony offender to an aggregate prison term of five years followed by fiveyears of postrelease supervision. Less than two weeks after sentencing, having successfullypersuaded County Court (Smith, J.) to release him on bail pending appeal, defendant was arrestedand charged with forcible touching after he allegedly accosted and fondled another youngwoman. Following a hearing, defendant's bail was revoked, and the new misdemeanor chargedwas dismissed—apparently as a matter of administrative convenience—in light ofthe underlying felony convictions and defendant's impending prison sentence thereon.
In July 2009, defendant was conditionally released to parole supervision and, in conjunctiontherewith, the Board of Examiners of Sex Offenders prepared a risk assessment instrument thatpresumptively classified defendant as a risk level two sex offender. The Board, however,recommended an upward departure to risk level three. Following a hearing, County Court(Cawley, J.) adopted the Board's recommendation and classified defendant as a risk level threesex offender. This appeal by defendant ensued.
We affirm. Preliminarily, we note that although defendant initially challenged the assignmentof points for risk factor 10 (recency of prior offense) as set forth on the risk assessmentinstrument, he has not briefed this issue on appeal and, therefore, we deem any argument in thisregard to be abandoned (see Matter ofSmith v Devane, 73 AD3d 179, 181 n 3 [2010], lv denied 15 NY3d 708 [2010]).Turning to the merits, "[a]n upward departure from a presumptive risk classification is justifiedwhen an aggravating 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" (People v Stewart, 77AD3d 1029, 1030 [2010]; seePeople v Wasley, 73 AD3d 1400, 1400 [2010]). Such evidence may consist of reliablehearsay, including information contained in the case summary, risk assessment instrument andpresentence investigation report (see People v Stewart, 77 AD3d at 1030; People v D'Adamo, 67 AD3d1132, 1134 [2009], lv denied 15 NY3d 714 [2010]), as well as "any victim'sstatement" (Correction Law § 168-n [3] [emphasis added]; see People v Mingo, 12 NY3d563, 576-577 [2009]; People vGood, 88 AD3d 1037, 1037 [2011]).
Here, County Court concluded that an upward departure was warranted based upon, amongother things, the forcible touching incident. Such conduct—committed 12 days afterdefendant was released on bail pending appeal—plainly was an indication that he "pose[d]an increased risk to public safety" (Sex Offender Registration Act: Risk Assessment Guidelinesand Commentary, at 14 [2006]; seegenerally People v Clark, 68 AD3d 485 [2009], lv denied 14 NY3d 705 [2010]).Contrary to defendant's assertion, the fact that the misdemeanor charge was ultimately dismissedin light of defendant's impending incarceration did not preclude County Court from analyzing thefacts underlying that incident (seePeople v Hammer, 82 AD3d 1456, 1457 [2011]; cf. People v Farrell, 78 AD3d 1454, 1455 [2010]; see generallyPeople v Clark, 68 AD3d at 485), inasmuch as the court was not limited to considering onlythe crime of conviction (see People vWizes, 79 AD3d 1543, 1544 [2010]) and, more to the point, could properly review thedescription of the forcible touching incident as set forth in the case summary and that victim'sstatement to the police—even though her statement was not sworn (see People vMingo, 12 NY3d at 576-577). Hence, this incident—standing alone—providesclear and convincing evidence to support the upward departure from the presumptive risk levelclassification. In light of this conclusion, we need not address the remaining aggravating factoridentified by County Court.
Spain, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed,without costs.