| People v Colsrud |
| 2017 NY Slip Op 07864 [155 AD3d 1601] |
| November 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Chad J.Colsrud, Appellant. |
Rosemarie Richards, South New Berlin, for defendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), for respondent.
Appeal from an order of the Steuben County Court (Marianne Furfure, A.J.), datedDecember 15, 2015. The order determined that defendant is a level three risk pursuant to the SexOffender 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 risk pursuant tothe Sex Offender Registration Act (Correction Law § 168 et seq.), defendantcontends that County Court erred in assessing points under the risk factor for failure to acceptresponsibility for his actions. We reject that contention. In statements to the probation officerpreparing the presentence report, defendant denied committing the offense and indicated that thevictim must have drugged him. We conclude that those statements "constitute clear andconvincing evidence of defendant's failure to accept responsibility, thus justifying the assessmentof 10 additional points for that risk factor" (People v Urbanski, 74 AD3d 1882, 1883 [4th Dept 2010], lvdenied 15 NY3d 707 [2010]; seePeople v Baker, 57 AD3d 1472, 1473 [4th Dept 2008], lv denied 12 NY3d 706[2009]).
We reject defendant's further contention that the court erred in granting the People's requestfor an upward departure from his presumptive classification as a level two risk. " 'Thecourt's discretionary upward departure [to a level three risk] was based on clear and convincingevidence of aggravating factors to a degree not taken into account by the risk assessmentinstrument' " (People vTidd, 128 AD3d 1537, 1537 [4th Dept 2015], lv denied 25 NY3d 913 [2015]).The People established by clear and convincing evidence that defendant had been convicted ofendangering the welfare of a child, and that such conviction arose from an incident occurringcontemporaneously with the acts that form the basis of the indictment herein. Thatcontemporaneous conviction provides the basis for an upward departure inasmuch it is" 'indicative that the offender poses an increased risk to public safety' " (People v Ryan, 96 AD3d 1692,1693 [4th Dept 2012], lv denied 20 NY3d 929 [2012], quoting Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary at 14 [2006]; see People v Neuer, 86 AD3d 926,927 [4th Dept 2011], lv denied 17 NY3d 716 [2011]; People v Vasquez, 49 AD3d 1282, 1284-1285 [4th Dept 2008]).Present—Whalen, P.J., Smith, Lindley, NeMoyer and Curran, JJ.