| People v O'Connell |
| 2012 NY Slip Op 03691 [95 AD3d 1460] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 2—The People of the State of New York, Respondent, v JohnO'Connell, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Garry, J. Appeal from an order of the County Court of Columbia County (Czajka, J.), enteredDecember 1, 2010, which classified defendant as a risk level two sex offender pursuant to theSex Offender Registration Act.
In 2009, defendant pleaded guilty to rape in the third degree and endangering the welfare of achild, stemming from him having sexual intercourse with a 15-year-old girl. Prior to his releasefrom prison, the Board of Examiners of Sex Offenders presumptively classified defendant as arisk level one sex offender (65 points) in accordance with the Sex Offender Registration Act(see Correction Law art 6-C). At the risk assessment hearing that followed, the People,among other things, recommended an upward departure to a risk level two classification. CountyCourt agreed and designated defendant a risk level two sex offender. Defendant 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" (People v Stewart, 77AD3d 1029, 1030 [2010] [citations omitted]; accord People v Burch, 90 AD3d 1429, 1430 [2011]). Here, therecord contains evidence that defendant involved his 11-year-old daughter in his unlawfulrelationship with the victim. Shortly after physical [*2]contactbetween defendant and the victim apparently ended, defendant wrote a love letter to the victimand a letter to the victim's 16-year-old sister inquiring as to why he could no longer call her or thevictim on the telephone and asking why her mother had gone to the police station. Defendant hadhis daughter deliver the letters to the girls at school and instructed them to give any reply to hisdaughter. We agree with County Court's determination that the risk assessment instrument didnot adequately take into consideration the nature of defendant's conduct here, and the lack ofinsight or responsibility thus revealed. The court's determination that an upward departure from arisk level one classification to a risk level two classification is thus supported by clear andconvincing evidence and will not be disturbed (see People v Curthoys, 77 AD3d 1215, 1216 [2010]; People v McElhearn, 56 AD3d978, 979 [2008], lv denied 13 NY3d 706 [2009]).
Mercure, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.