| People v Ryan |
| 2012 NY Slip Op 05297 [96 AD3d 1692] |
| June 29, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gerard J.Ryan, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal from an order of the Niagara County Court (Sara S. Sperrazza, J.), entered July 7,2011. The order determined that defendant is a level three risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant tothe Sex Offender Registration Act (Correction Law § 168 et seq.), defendantcontends that County Court's upward departure from his presumptive classification as a level tworisk to a level three risk is not supported by clear and convincing evidence. Contrary todefendant's contention, we conclude that the People presented "the requisite clear and convincingevidence 'that there exist[ ] . . . aggravating . . . factor[s] of a kind, orto a degree, not otherwise adequately taken into account by the [risk assessment] guidelines' " (People v McCollum, 41 AD3d1187, 1188 [2007], lv denied 9 NY3d 807 [2007]; see Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see also People v Howe, 49 AD3d1302 [2008]).
Initially, we note that, although defendant was not assessed any points under the riskassessment instrument for a prior sex crime, there is clear and convincing evidence that hecommitted various sex offenses during the summers of 2005 and 2006 that resulted in twoseparate convictions in different counties. Such concurrent convictions may provide the basis foran upward departure if they are "indicative that the offender poses an increased risk to publicsafety" (Risk Assessment Guidelines and Commentary, at 14; see People v Vasquez, 49 AD3d 1282, 1284-1285 [2008]; see also People v Neuer, 86 AD3d926, 927 [2011], lv denied 17 NY3d 716 [2011]). There is also clear and convincingevidence that defendant lived a transient lifestyle, traveling between campgrounds (see People v Briggs, 86 AD3d903, 905 [2011]) and, indeed, that he committed sex offenses at those campgrounds.
Finally, it appears that the Board of Examiners of Sex Offenders did not consider defendant'sconvictions of endangering the welfare of a child in its assessment of points under the riskassessment instrument, inasmuch as that offense does not fall within the definition of a [*2]sex offense for registration purposes (see Correction Law§ 168-a [2]; People v Brown,45 AD3d 1123, 1124 [2007], lv denied 10 NY3d 703 [2008]).Nevertheless, defendant's convictions of endangering the welfare of a child appear to have beenbased on his having exposed himself to his stepgrandchildren, and we agree with the court thatsuch conduct was not adequately taken into account by the risk assessment instrument (seeBrown, 45 AD3d at 1124; see also Vasquez, 49 AD3d at 1283-1285). We thusconclude that the record establishes that "the risk of repeat offense is high and there exists athreat to the public safety" to warrant an upward departure to a level three risk (§168-l [6] [c]). Present—Smith, J.P., Fahey, Peradotto, Lindley and Martoche, JJ.