| People v Shepard |
| 2013 NY Slip Op 00834 [103 AD3d 1224] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vNathaniel Shepard, III, 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.), enteredJune 7, 2010. The order determined that defendant is a level three risk pursuant to theSex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: On appeal from an order determining that he is a level three riskpursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168et seq.), defendant contends that County Court violated his due process rights byordering an upward departure from his presumptive risk level without informing him thatit intended to consider such a departure, which the People had not requested. Defendant,however, failed to preserve that contention for our review (see generally People vWroten, 286 AD2d 189, 195-196 [2001], lv denied 97 NY2d 610 [2002]).
Defendant further contends that the court abused its discretion in finding that adeparture from risk level two to risk level three was justified by the evidence adduced atthe SORA hearing. "A court may make an upward departure from a presumptive risklevel when, after consideration of the indicated factors . . . [,] there exists anaggravating . . . factor of a kind, or to a degree, not otherwise adequatelytaken into account by the [risk assessment] guidelines" (People v Grady, 81 AD3d1464, 1464 [2011]; seePeople v Howe, 49 AD3d 1302, 1302 [2008]). Here, the court properly based itsupward departure on reliable hearsay from the presentence report and the case summary,which demonstrates that defendant forcibly raped a 10-year-old girl when he was 11years old and participated in the gang rape of a 14-year-old girl when he was 15 yearsold. Contrary to defendant's assertion, his commission of those illegal sexualacts as a youth is an aggravating factor not adequately accounted for by the riskassessment instrument. Although defendant had been assessed, inter alia, 30 points underrisk factor 9 ("Number and nature of prior crimes"), that assessment was based solely onhis prior attempted robbery convictions. As the People correctly note, defendant couldnot have been assessed points under risk factor 9 for raping the 10-year-old girl or forlater gang-raping the 14-year-old girl because he was neither convicted of a crime foreither act nor adjudicated a juvenile delinquent for a sex offense based on either act.Thus, the court properly relied on defendant's prior juvenile sex offenses in [*2]determining that he poses a level three risk of reoffending.Present—Scudder, P.J., Fahey, Lindley, Valentino and Martoche, JJ.