| People v Collins |
| 2013 NY Slip Op 01714 [104 AD3d 1220] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vStephen M. Collins, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jason A. Macbride of counsel),for respondent.
Appeal from an order of the Ontario County Court (William F. Kocher, J.), datedNovember 21, 2011. The order determined that defendant is a level two risk pursuant tothe Sex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Defendant appeals from an order determining that he is a level tworisk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168et seq.). Based on the risk assessment instrument prepared by the Board ofExaminers of Sex Offenders, defendant was presumptively classified as a level one riskbased on his total risk factor score. Following a SORA hearing, however, County Courtdetermined that an upward departure to a level two risk was warranted. We rejectdefendant's contention that the court's upward departure is not supported by the requisiteclear and convincing evidence (see § 168-n [3]). The presentence reportcontained evidence that defendant had frequently downloaded pictures of naked younggirls onto his home computer, and the mental health therapist who evaluated defendantfor SORA classification purposes diagnosed him as a pedophile. A "diagnosis [ofpedophilia] alone would support a finding that defendant poses a serious risk to publicsafety, justifying the upward departure from the presumptively correct classification ofdefendant as a level [one] risk" (People v Seils, 28 AD3d 1158, 1158 [2006], lvdenied 7 NY3d 709 [2006]; see People v Zehner, 24 AD3d 826, 827 n [2005]). In anyevent, we conclude that "defendant's psychological abnormalities are causally related toany risk of reoffense, and thus that there is clear and convincing evidence of specialcircumstances to support the court's upward departure from defendant's presumptive risklevel" (People v Mallaber,59 AD3d 989, 990 [2009], lv denied 12 NY3d 710 [2009]).Present—Smith, J.P., Fahey, Sconiers, Valentino and Whalen, JJ.