| People v Perrah |
| 2012 NY Slip Op 06722 [99 AD3d 1257] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Luke M.Perrah, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), entered April 26,2011. The order determined that defendant is a level two 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 adjudicating him to be a level two risk pursuant tothe Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.),defendant contends that County Court erred in making an upward departure to a risk level twofrom the presumptive level one risk. We reject that contention. An upward departure from apresumptive risk level is warranted where " 'there exists an aggravating . . . factor ofa kind, or to a degree, not otherwise adequately taken into account by the [risk assessment]guidelines' " (People v McCollum,41 AD3d 1187, 1188 [2007], lv denied 9 NY3d 807 [2007]; see People v Howe, 49 AD3d1302, 1302 [2008]). "There must exist clear and convincing evidence of the existence ofspecial circumstance[s] to warrant an upward or downward departure" (People v Hamelinck, 23 AD3d1060, 1060 [2005] [internal quotation marks omitted]; see People v Sawyer, 78 AD3d 1517, 1518 [2010], lvdenied 16 NY3d 704 [2011]; Peoplev Gandy, 35 AD3d 1163, 1164 [2006]), and such evidence must be established by"[r]eliable [h]earsay," including case summaries, presentence reports, and grand jury testimony(People v Mingo, 12 NY3d563, 572-573 [2009]; see People vGardiner, 92 AD3d 1228, 1229 [2012], lv denied 19 NY3d 801 [2012]; People v Alvarado, 79 AD3d1719, 1719 [2010], lv denied 16 NY3d 707 [2011]).
Here, the court properly relied on the case summary, the presentence reports, and defendant'sown testimony at the SORA hearing in determining that the upward departure was justified basedupon two factors not reflected in the risk assessment instrument: (1) "defendant's denial or atleast hedging about the prior sexual abuse"—as evidenced by his denial of wrongdoing inhis 2006 presentence report with respect to a conviction of endangering the welfare of a child, aswell as his explanation of that crime in court; and (2) his "lack of candor about his own history ofabuse," as evidenced by defendant's failure to disclose that abuse in connection with his firstpresentence report. Furthermore, as the People correctly contend, defendant's commission of theinstant offense while engaged in sex offender counseling for the [*2]prior offense demonstrated that counseling and probationsupervision did not curb his dangerous propensities, and that is another factor not reflected in therisk assessment instrument. The court's upward departure was thus amply supported by therecord. Present—Scudder, P.J., Smith, Fahey, Lindley and Martoche, JJ.